Cross v. State , 99 Tex. Crim. 207 ( 1925 )

By indictment appellant was charged with mixing poison with food with the intent to injure E. S. Dunlap and other persons unknown to the grand jury; upon conviction his punishment was fixed at confinement in the penitentiary for a period of two years.

The reliance of the State was upon circumstantial evidence which is deemed sufficient to support the finding of the jury to the effect that Paris Green was, by the appellant, put in the coffee pot used by Dunlap with the intent to poison him. Appellant testified and denied the commission of the offense.

The State's theory, supported by the testimony, is this: Dunlap was a creditor of the appellant's mother, and lived alone. Traveling in his buggy, appellant went to the home of Dunlap, passing a school-house on the way. While at the home of Dunlap appellant got a bucket of water from the cistern and put it on a shelf on the porch of Dunlap's house. Appellant's arrival was late in the evening. Dunlap prepared and ate supper, of which appellant did not partake, claiming to have been ill. Dunlap became violently ill during the night. Appellant left early the next morning. Paris Green was found in the coffee pot used by Dunlap at supper, also at the water-bucket, the cistern and along the road which was traveled by appellant. At the school-house mentioned there was found a box which, according to the testimony, had contained Paris Green, and upon which box was the cost mark of a merchant, who, a short time before, had sold a box of Paris Green to the appellant. The box found was identified by the merchant.

Bills of exception complain of the receipt in evidence of the testimony of Gregory and Holmsley to the effect that on the second day after the occurrence they examined the buggy which was at the home of the appellant, and which had been used by him in traveling to the house of Dunlap, and found under the seat, two pieces of a paste board box. Gregory said it had on it what looked like Paris Green. Quoting him:

"In my opinion that is Paris Green on it. I have not personally had any experience in using Paris Green; I have seen it used in poisoning cotton several years."

As shown in one of the bills, Holmsley testified:

"I found some green powder-looking stuff; looked like Paris Green; that is what I thought it was."

Guinn said that he examined the premises of Dunlap and found little specks of Paris Green on the ground near the cistern. He also found Paris Green on the gallery of the house, in the water bucket on the kitchen floor, and in the coffee pot. He said he had used Paris Green in killing worms and ants, and was acquainted with it.

Two objections were urged against the testimony of each of these witnesses. One was to the point that the evidence was too remote and was not res gestae. This objection, we think, was not tenable. The conditions described by the witnesses were relevant circumstances tending to support the State's case. We have failed to perceive any evidence in the record requiring a technical or expert knowledge to identify Paris Green, that is, to recognize it when it is seen. The witnesses Guinn and Gregory, however, testified to facts which show a familiarity with the substance. Holmsley's testimony was cumulative of theirs upon an issue which was not controverted, that is, that on the box found in the buggy of the appellant was a powder which looked like Paris Green, and which the witness thought was Paris Green. The bill does not show a lack of knowledge on the subject, nor that expert knowledge was necessary. Such showing in the bill would be essential to authorize a reversal. Dane v. State, 36 Tex.Crim. Rep.; Bratt v. State,38 Tex. Crim. 122; Holder v. State, 81 Tex. Crim. 197.

No complaint is made of the charge of the court.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.