Johnson v. State

Hurt, Judge.

This appeal is from the judgment of the district court of Bexar county, convicting appellant for murder in the first degree, the punishment fixed by the verdict being confinement in the penitentiary for life. The deceased was the step-father of the accused, and the homicide was effected by the use of poison,— arsenic.

It is urged that the court below erred in allowing the State’s witness Kalteyer, an expert chemist, to testify, over objection, as to the result of his examination of the contents of a stomach which had been submitted to him for analysis, the objection being that, at the time the evidence was offered and admitted, no proof had been made that the stomach examined by the chemist was in fact the stomach of the deceased, Alfred Owens: and that such evidence at that stage of the proceeding was calculated to prejudice the cause of defendant in the minds of the jury.

It appears from the explanation annexed to the bill of exceptions by the trial judge, that when the objection was made the State’s counsel announced that he would show afterwards, by a witness then absent, that the stomach and contents were those of the deceased; and that the evidence was then admitted with the understanding that such evidence as to identity would be produced. It further very clearly appears from the evidence found in the statement of facts that the stomach and contents examined by Kalteyer were those taken from the body of the deceased, and that it passed into his hands in the condition in which it was taken from the body. This being so, there is no error apparent, and we regard the ruling above criticism.

A like objection was urged to proof of the result of the analysis made of a substance found upon the surface of a plate, a dish, and a cup and saucer, before proof was made to identify possession and custody of them. This proof was afterwards clearly made, and the remarks above are applicable to the ruling upon this point.

The State was permitted, over objection, to prove that while the inquest was being held by the justice, the State’s witness Johnson approached defendant, who was in attendance, and asked her if she did not poison deceased, and that she replied, “I don’t give a d—n if I did.” It is urged that this was error, as the defendant was under arrest at the time. This objection is not sustained by the record. The evidence clearly shows that when the question was asked and answered the defendant had not been arrested nor was she under restraint. At the time, the inquisition seems to have been directed towards the wife of the deceased, and defendant was in attendance as a witness; and it was afterwards that suspicion was directed to the defendant and- her arrest made.

[Opinion delivered January 23, 1886.]

The record has had our most careful consideration, and we have found no error. The evidence of the defendant’s guilt is conclusive and the charge of the court is without fault.

The judgment is affirmed.

Affirmed.