Ellington v. State

Appellant was convicted of an attempt to poison his wife by mixing a noxious potion and causing her to drink some, and his punishment assessed at confinement in the penitentiary for a term of ten years; hence this appeal.

Appellant reserved a bill of exceptions to the following action of the court: "While Mrs. Eva Ellington (prosecutrix) was on the stand, testifying for the State, she swore that she had received $150 from her guardian, and that defendant placed this money between the beds and between two pistols, and that one morning she went to the cow pen to milk, leaving defendant in the house, and that when she returned, on investigation, she discovered that her money was missing; the two pistols not having been disturbed. This was some time before she and her husband separated; that she never recovered the $150." This testimony was objected to by appellant on the ground that it was wholly immaterial, irrelevant and likely to inflame the minds of the jury and prejudice them against him: he not being on trial for the theft of said money, the same could not be given as evidence against him. It has frequently been held that an exception to the testimony on the ground that the same was immaterial and irrelevant, stated no ground of objection, unless the same was obviously inadmissible. Hamblin v. State, 41 Tex.Crim. Rep.; McGlasson v. State, 38 Tex.Crim. Rep.; Cline v. State, 34 Tex. Crim. 347; Buchanan v. State, 24 Texas Crim. App., 195. However, we note that appellant further objected on the ground that he was not on trial for theft of said money, and that the same could not be given as evidence against him. Now, a bill of exceptions to the action of the court admitting testimony, should always show enough of the surroundings or environments to indicate that the court was in error in admitting the evidence. If this bill had shown, in its statement of the facts, that the transaction with reference to the taking of the $150 was isolated and had no connection whatever with the alleged attempt to poison, then this would have been a sufficient showing. As presented, the bill shows that sometime before prosecutrix and her husband separated (what time is not stated) he may have taken $150 which she claimed as her separate property. This testimony in connection with the other evidence may have been relevant as having some bearing on the accusation charged against appellant. So far as we are advised from the bill itself, the attempt to poison may have been brought about on account of this money matter. Again, the taking of the money by the husband was not, under the circumstances, a crime, as under the law he has control of the separate property of the wife. Not being a crime it is not necessary, under the facts, for the court to limit this matter in the charge.

The next bill shows that while Mrs. Ellington was on the stand as a witness for the State, she stated that sometime before she was seized with convulsions, and after her marriage to defendant, the defendant requested her to make a will, and therein to will her property to him. To this request, she stated, she declined to accede. This testimony was objected to by defendant on the ground that it was wholly immaterial and likely to prejudice the jury against appellant. The court overruled the objections and admitted the testimony. We make the same observation with reference to this bill of exceptions as stated to the former bill; that is, the bill does not state the surrounding facts in connection with the admitted testimony, in order that the error of the court in admitting the same can be determined. The ground of objection stated, that the same was immaterial, is not a sufficient statement; the testimony not appearing to be obviously immaterial. The further statement that it was likely to prejudice the minds of the jury against him is no ground of objection, unless it be shown that said testimony was illegal and should not have been admitted. All testimony, legitimately introduced against an appellant, is offered for the purpose of injuriously affecting him before the jury. So far as we are advised by this bill, the attempt by appellant to poison prosecutrix, may have been caused or proceeded from her refusal to make a will of her property in his favor. At least, we can conceive how this may have operated as some motive in the premises. We believe it was competent to show in this connection that Mrs. Ellington owned separate property.

Appellant reserved a bill of exceptions to the action of the court permitting the State in cross-examination of appellant, in asking the following question: "If Dr. Ralph Caldwell furnished you the medicine for your wife, which you say created the symptoms mentioned by her, then why is it at a former term of this court you wanted to continue this cause to secure the testimony of Dr. H.M. Reeves, by whom you said you expected to show that he, Dr. Reeves, furnished you this medicine?" In response to this question, defendant answered, that at the time he got the medicine from Dr. Caldwell, he (said Dr. Caldwell) and Dr. Reeves were practicing together at Halbert, and that Dr. Reeves was an old and experienced practitioner, and that he supposed Dr. Reeves had in fact prepared the medicine and delivered it to Dr. Caldwell, who had delivered it to him. This testimony was objected to on the ground that it was an examination with reference to a former application for continuance of this cause, when said application was only a verbal one, made by Judge Polley (who is now deceased) and who was then counsel for defendant; and that said motion was not in conformity with the law, neither signed nor sworn to by this defendant, but only the verbal statement of his attorney, for which this defendant could not be bound; and that said testimony was immaterial. This objection was overruled and the testimony admitted. It will be noted that no objection was urged here to the effect that Judge Polley was not authorized by appellant to make the statement attributed to him, as a ground for the continuance. Indeed the answer of the witness to the question shows that Judge Polley was acting for appellant as his counsel, and was evidently acting from information furnished him by appellant. We hold that it was competent for the State to introduce this testimony as tending to show that appellant's defense that the noxious potion alleged to have been given by him to his wife was not strychnine, but some other medicine furnished him by the doctor to cause an abortion on his wife, was fabricated and untrue.

It was not necessary for the court to have instructed the jury with reference to confessions, that they were not authorized to convict appellant on confessions alone. This was not that character of case. There was abundant testimony outside of alleged confession, both as to the corpus delicti, and appellant's collection therewith.

Some criticism is indulged by appellant in motion for new trial with reference to the court's charge defining noxious potion. We believe this is in accordance with the statute. We understand appellant's counsel in his argument to have abandoned this assignment.

We do not believe that the charge of the court submitting the issue as to the mixing and administration of said noxious potion to prosecutrix, was upon the weight of the evidence. The court directly instructed the jury, in the first instance, if they believed defendant mingled or caused to be mingled a noxious potion with water, with the specific intent to injure or kill Eva Ellington, and then told the jury, if the noxious potion so mingled with water was strychnine, and that after so mingling said strychnine with water defendant did then and there, with intent to injure and kill, cause said Eva Ellington to drink said water, with which said noxious potion or substance had been mingled, then to find appellant guilty, etc. This could not be considered an assumption on the part of the court that appellant had mingled said strychnine with water. This issue was submitted in the first instance by the court to the jury to be found as a fact, and then proceeds to tell them, if they believed as a fact appellant administered said noxious potion to his wife, with intent to injure or kill her, to find him guilty. We regard the objections to this charge as hypercritical.

The following charge is seriously objected to by appellant to wit: "Certain testimony has been introduced before you to the effect, if true, that the defendant is or has been charged with other offenses than the offense charged by the indictment in this case. And in this connection you are instructed, that you cannot consider this testimony as evidence even tending to establish any of the allegations of the indictment, but should you believe this evidence to be true, you may only consider it in determining the weight of the testimony of the defendant as a witness or his credibility, if you think it entitled to any consideration whatever." The only possible criticism that can be urged to this charge is, to the last sentence to wit: "If you think it entitled to any consideration whatever." If this sentence could be interpreted as referring to defendant as a witness or to his testimony, then it would be obnoxious as a charge on the weight of the evidence. However, we think a proper reading of this sentence, in connection with what precedes it, refers to the alleged impeaching testimony. For instance the court instructs the jury, if they considered this impeaching evidence to be true, they could only consider it in determining the weight of the testimony of the defendant as a witness or his credibility, "if you think it worthy of any consideration whatever." That is, it was tantamount to telling the jury, if they believed the impeaching testimony was worthy of any consideration whatever. If this charge is subject to criticism at all, it is because it is rather too favorable to appellant.

We have examined the record carefully, and in our opinion the evidence supports the verdict. The judgment is affirmed.

Affirmed.