Aven v. State , 95 Tex. Crim. 155 ( 1923 )

Appellant calls to our attention a point not discussed in the original opinion growing out of the action of the court upon his motion for severance. To our minds it presents a most serious question. Appellant was under indictment for the murder of his wife, Mrs. Maud Aven, by administering to her arsenic poison. He alleged in his motion for severance that Mrs. Dessie Keyes was also under indictment charging her as an accomplice in the said murder of Mrs. Maud Aven, and also that Mrs. Keyes was charged in another indictment as accomplice to the murder of the Aven child. He asserts in his motion that the act and transaction for which Mrs. Keyes was under indictment, to-wit: the murder both of appellant's wife and child to be the same act and transaction charged against appellant: "that the Aven child was nursed by its mother Mrs. Maud Aven (deceased) before she died and after she had taken into her system arsenic and the act and transaction which produced the death of Mrs. Maud Aven is the same act which produced the death of the child and for this reason but one offense had been committed."

Appellant requested that Mrs. Keyes be tried in both the cases pending against her before appellant be put to trial asserting that her evidence was material to him, and that he did not believe there was sufficient evidence against her to result in her conviction. The bill proceeds as follows:

"That the County Attorney, Frank B. Tirey, was present when said motion was read and presented to the court and did not by affidavit, or by the introduction of evidence, controvert the truthfulness of said affidavit and motion, and the defendant, thru his counsel, informed the court that the defendant, W.T. Aven, was charged with murder of both his wife and child by separate indictments and that the defendant Dessie Keyes was also charged by two separate indictments with being an accomplice in the murder of the said Mrs. Maud Aven and the Aven child, and that it was the defendant's theory that the Aven child was poisoned as a result of having been nursed by its mother thereby getting poison thru the mother's milk and that no one poisoned the Aven baby directly and that the act of poisoning the mother is the same act that produced the death of the child. The court, after hearing said motion, and considering said affidavit, and upon consultation and motion of the County Attorney, dismissed the case against the said Dessie Keyes, being case No. 5788, charging her with being a principal and accomplice to the murder of Mrs. Maud Aven, the deceased, but refused to dismiss the case charging the said Dessie Keyes with the murder of the Aven child, without stating, any reason, other than the fact that there was nothing to that part of defendant's motion. To the court's action, in overruling said motion, the defendant, in open court, then and there excepted. The defendant now tenders this his bill of exceptions Number Three, and asks that the same be examined, filed and approved as part of the record in this case which is accordingly done. This bill is approved with the following explanation. Dessie Keyes was charged as an accomplice only to the murder of Mrs. Maud Aven and also as an accomplice to the murder of her husband Leslie Keyes, and also as an accomplice to the murder of the Aven child."

The county attorney responded to the motion for severance by dismissing the prosecution against Mrs. Keyes charging that she was a party to the killing of Mrs. Aven, but in that for her alleged connection with the child's death no action was taken. The indictment against her growing out of the death of the Aven child, upon its face, would appear to be a separate offense. In his application appellant appears to have brought himself within the rule announced in Cotton v. State, 92 Tex.Crim. Rep., 244 S.W. Rep., 1027 that to entitle one to a severance it must be averred that the co-defendant must be charged with the sameoffense, and not one merely growing out of the same transaction. The facts stated in the motion and supported by the affidavit were uncontroverted, and seem to have been treated by the learned trial judge as reciting the true facts, but were deemed by him insufficient to entitle appellant to a disposition of the charge against his co-defendant relative to the murder of the Aven child.

When an accused by proper showing brings himself within the provision of Article 727 C.C.P., relative to a severance, he is entitled thereto as a matter of right. Wiley v. State, 22 Tex. Cr. App., 408; Sanchez v. State, 70 Tex.Crim. Rep., 156 S.W. Rep., 218. (For other authorities see Sec. 734, page 378, Branch's Ann. P.C.) This appellant appears to have done, if as a matter of law the death of the Aven child was the same act or offense that caused the death of Mrs. Aven, and for which appellant was to be tried. If appellant killed his wife by administering poison and Mrs. Keyes was a party thereto, and there was no intent or volition to kill the Aven child, but her death resulted from the act or volition of administering poison to the mother which passed to the child from nursing at the mother's breast, was it one offense or two? If A with intent to kill B only, shoots him with a high-powered rifle, and the same bullet passing through B also kills C, is A guilty of more than one offense? Where there is only one intent and one volition, it is in contemplation of law but one act, and there can be but one offense even though more than one person be killed. Cook v. State, 43 Tex.Crim. Rep.; Augustine v. State, 41 Tex. Crim. 69; Ashton v. State, 21 S.W. Rep., 48; Hevera v. State, 34 S.W. Rep., 942. The same holding is announced and many authorities reviewed in the comparatively recent case of Spannell v. State, 83 Tex.Crim. Rep., 203 S.W. Rep., 357. See also Corpus Juris, Vol. 16, Sections 443 and 444. The act charged against Mrs. Keyes for complicity in the death of the Aven child was, under the facts stated in the motion for severance, the same offense under the law as the one charging her with complicity in the killing of appellant's wife, and the same offense which appellant was then being called to defend against. Upon his motion for severance he was entitled under the statute to have the charge against Mrs. Keyes relative to the death of the child either first tried or dismissed, if the prosecution elected the latter, before he could be legally put to trial.

The other questions presented in the motion for rehearing we believe to have been correctly disposed of in our original opinion, but for the error discussed the judgment of affirmance must be set aside, and the judgment of the trial court reversed and the cause remanded.

Reversed and remanded.