Rupe v. State

Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life, and prosecutes this appeal.

The indictment contained five counts. The conviction, however, was applied to the fifth count, so it will only be necessary to notice the points arising under said count. The theory of the State, which was supported by evidence, was that appellant and one Bob Coleman, acting together, poisoned deceased, A.T. Randall, by giving him morphine and chloral (one or both) in beer, which caused his death, and that this was done for the purpose of committing a felony, to wit, theft from the person. This occurred at the appellant's saloon. The accomplice, Bob Coleman, was the main witness for the State. By his testimony the actual administration of the morphine and chloral was proven. Morphine was administered first, some time between 6 and 7 o'clock in the evening. About 8 o'clock chloral was procured at a drug store near by on two occasions — 120 grains each time. It is not clear whether the first chloral procured was given, as the testimony suggests it may have been all or partially spilled. A short while thereafter a like quantity was procured, and deceased appears to have drank some of this in his beer, and remarked it was too bitter and he could not drink it. Somewhere about 8 o'clock, or shortly afterwards, deceased appears to have been affected by the drugs administered. He was in a comatose condition, and appellant and Coleman put him out of the saloon, where he was shortly afterwards found dead. The testimony of the State also shows the administration of the drugs was for the purpose of stupefying and rendering deceased unconscious, so that the parties might steal money from him which he exhibited in the saloon. A post mortem of the body of deceased showed that about a half grain of morphine was discovered in the stomach. The expert could not state accurately how much had been taken in the stomach, as he could not tell how much had been absorbed. The testimony of this expert showed: That a lethal dose for an ordinary man was about two grains. That how much it would take to kill in particular cases would depend upon the constitution, habits, etc., of the person. That morphine was not necessarily poison, and need not necessarily produce death. That it depended upon the manner of its use and the quantity, as well as the habits of the individual and his condition. It had its effect in ordinary cases in fifteen or twenty minutes, sometimes longer. No chloral was discovered, and no tests were made for the same. That chloral is also a hypnotic. He could not tell how much it would take to kill. In exceptional cases as much as 900 grains had been given without fatal results. The State also introduced other evidence tending to corroborate the accomplice as to some of his testimony — among others, the testimony of Lillian Graves. As to her, some of the testimony suggested that she might have been an accomplice. In defense appellant insisted on the weakness of the State's case. It is particularly insisted that under the evidence, chloral was the cause of the death, and that the testimony showed defendant was not present when the chloral was administered, and that he was in no wise responsible therefor. Defendant asked charges covering these phases of the case. He also urged that the testimony showed morphine and chloral were not necessarily poisons; that they were administered with no intent to take life, but merely for the purpose of stupefying or putting deceased to sleep so that they might take his money; and that, if appellant was responsible for the death at all, he was entitled to a charge on murder in the second degree; and he excepted to the refusal of the court to give such a charge. Enough of the facts have been stated to present and discuss the bills of exceptions reserved.

On the cross-examination of Bob Coleman, he was asked, if on the next day after the homicide, which occurred at night, he did not go to the Trinity River bottom, and on the evening of that day if he did not meet Sam Spears, and give Spears a silver dollar, and ask him to go to town and get him (Coleman) something to eat, and if Spears did not subsequently return to the bottom where Coleman was, and tell him that his brother, Jim Coleman, sent word for him to come to town. The witness at first denied this, but subsequently stated it was the second day after the killing of the deceased that he was in the bottom, and the occurrence inquired about happened. Appellant then proposed to introduce Sam Spears, and prove by him that it was on the next day after the homicide, or the next succeeding day after the homicide, that he met Bob Coleman in the Trinity bottom, and the events inquired about happened. In this connection it was further proposed to prove by one Lowe, who accompanied Sam Spears to the Trinity bottom, where said Spears met Bob Coleman, that it occurred on the day immediately succeeding the homicide. This testimony was refused to be admitted by the court, and appellant assigns this as error. Now, it will be noted that the witness Coleman did not deny going to the Trinity bottom, and what occurred between him and Spears. He merely denies that it occurred on the next day, and appellant proposed to contradict him as to time. We do not consider this matter material, so as to afford the basis of a contradiction. It was something that happened after the accomplishment of the conspiracy, and not before its consummation or during its accomplishment. If the guilt of Coleman, the accomplice, was a disputed fact, and by his testimony he was endeavoring to lay the whole transaction on appellant, then his flight might become a very material circumstance. But here he admits his connection, and admits his flight and concealment in the Trinity bottom; and whether it was the next day or the day after, it occurs to us, is immaterial.

Appellant offered to prove by the witnesses Duncan, Pendleton, and Day that they were acquainted with deceased, and that he bore the reputation of a morphine eater. Duncan stated: That deceased had been a school-teacher near Meridian, and that deceased stayed at the hotel kept by witness for several days a short while before his death. During this period he observed the conduct of deceased, and that it was peculiar. That he appeared to be in a stupor when in the house, and at times would sit around seemingly in a stupor. That he appeared to have no appetite, and that he had a peculiar expression out of his eyes, and that he was sullen and morose, and from his manner and conduct it was the opinion of the witness that Randall was addicted to the morphine habit. That he had observed during thirty years past other persons addicted to that habit, and he judged from the manner of deceased he was addicted to it. On cross-examination this witness indicated: That he had noticed three persons during thirty years, and one of them he saw for several years about once a month. Another one he saw in a store in the town where he went to trade. As to the last two, he did not know whether they used morphine. Witness could not tell how morphine affected the appearance of a person — whether it dilated or contracted the pupils of the eyes, and what effect it had upon the complexion or facial expression. He was simply judging from general appearances and stupor. That whisky produced the same stupor, as far as appearances, as morphine. That he did not know whether or not Randall had been drinking whisky. Did not know whether his condition was produced by whisky or morphine. By Pendleton he proposed to prove merely that the reputation of deceased in the community was that he was addicted to the habit of using morphine, or an opiate of some kind; that before appellant came to his house he was on a spree in town; that the conduct of deceased was peculiar, as he observed it, and that he appeared to have no appetite, and was of a sullen or morose disposition, stayed about the house nodding in the daytime, even when he arose in the morning, talked and muttered to himself, and at night would cry out in his sleep, and that his eyes had a peculiar look, and the school children complained about his peculiar muttering to himself and other unusual conduct; that he inquired in order to ascertain whether deceased was a morphine eater, and went to the doctor and asked him about it, and the doctor told him he did not sell him any and did not know of his using any; that he was a nervous and feeble man. This witness further stated he did not know the effects of morphine or opiates; that there were only three or four Americans in the community where deceased was teaching school at the time, and his reputation was confined to them. By the witness Day it was proposed to prove: That deceased was in his house for a day or two. That his conduct was very peculiar, and in the nighttime he acted like a crazy man. Waked witness after he had been asleep, raving and hallooing. He might have been drunk. Witness could not say he had not been drinking, and that his acts would not be produced by drinking, but he acted differently from any other drunken man. None of these witnesses testify that they had ever seen or known of deceased using any opiates or morphine. As stated, the court refused to permit the introduction of this testimony, which appellant insists was admissible for the purpose of accounting for the morphine found in the stomach of deceased after death. In support of his contention appellant cites to us to several authorities which authorize the introduction of the character of the deceased in certain cases of homicide, as being a dangerous man, etc., and contends that by analogy this sort of testimony is admissible. If this was a matter provable by character, as that deceased had the reputation of being a morphine eater, we do not believe the witnesses show themselves sufficiently conversant with the reputation of deceased in that respect. But we do not believe this is a matter provable by reputation, independent of any testimony at all showing that deceased actually ate or used morphine or other opiates. If we recur to the record, there is no testimony tending to show that at the time or shortly before the death of deceased he took any morphine voluntarily — much less, that he took any with suicidal intent. The evidence does not even suggest this. In connection with this testimony appellant also proposed to show by Dr. Thomson, a physician, that from the testimony of said witnesses it was his opinion deceased was a morphine eater. It appears, however, this witness was not in court at the time. Waiving that, still, if the testimony on which the hypothetical opinion was to be based was not admissible in evidence, then the opinion could not be given, because there was nothing in the case upon which to found it.

As an inculpatory fact against appellant, the State proved by Jack Cabell: That a few minutes after deceased died he went to the body, lying close to the door of the saloon. Found the cap of deceased in the north corner of the door, wedged in under the door. That he pulled it out. It was wedged in tight. It was not in loose It was in tight. That he examined the door, and the cap could not have been pushed in from the outside. Subsequently the State was permitted to prove, over the objections of defendant, by witnesses Carson and Miller, that they went to the saloon in question and took the cap of deceased with them; that it was mashed flat, caused by being shut in under the door of the saloon kept by defendant, in which the poison was thought to be administered to deceased; that witnesses put the cap down within the door of the saloon at which it was said to have been found, same being mashed down behind, and that witnesses then jerked the door to, and the cap caught under the door at the place and in the manner as State's witness Jack Cabell had stated he had found it on the night of the homicide. This experiment was repeated as many as four times, and every time the cap caught under the door in the manner aforesaid. Appellant objected to all of said testimony, for the reason that it was incompetent to bind defendant by the aforesaid tests, and that the condition were not proved to have been the same as at the time of the murder, nor was the door shown to have been in the same condition; nor did the evidence of the State show how the cap was lying or where it was with reference to the door on the night of the homicide when it was claimed to have been caught under the door. Nor was it shown that the cap was then mashed down behind as it was at the time of the said experiment; but, on the other hand, the proof showed it was mashed down by reason of its having been caught under the door. And said experiments did not show whether the cap in its natural condition would have been caught under the door or not; and in fact the experiment was made with the cap as it would have been in its natural condition when worn on the head. Defendant further objected to said testimony, because it was purely conjectural, and defendant was not present at said experiments, and he in no manner could be bound thereby. In explanation the court says: "Defendant swore that he closed the door and no cap was under it, and he further swore that nothing could get under the door thicker than a sheet of paper." It will be noted as to this bill it is stated, as a ground of objection to the admissibility of this testimony, that the experiment was not performed under the same conditions with reference to the door and cap as when the same was first found by the witness Cabell. To have been a good bill, we think it should have distinctly shown, as a matter of fact, the character of cap; its condition at the time; the kind of door, and its condition at the time; and then shown the condition of the cap at the time the experiment was made and the condition of the door, so as to have shown by the facts that the experiment was not performed under the same or nearly similar conditions, as we understand the rule to be. That is, the bill must show in itself that the testimony was not admissible. Now, as far as we are advised, we do not know what kind of cap this was. There are various kinds of caps, some stiff and some soft, which when worn on the head fall flat. For aught that we know, the cap in question may have been of this character. The witnesses merely say the cap was mashed down and not in the condition as when worn on the head. In our opinion the bill does not disclose that the experiment was not made under similar or nearly similar conditions as existed at the time of the homicide. As has been frequently held, the grounds of objection stated — that the facts were not similar — is not a certificate by the judge to that effect. It further occurs to us that the rule invoked by appellant, that the conditions must be similar or exactly similar, is not the correct one. They must be similar or nearly so. See Clark v. State, 38 Tex.Crim. Rep.. Appellant says this testimony was admitted for the purpose of corroborating Jack Cabell as to finding the cap wedged under the door, and was materially injurious to him. Cabell was not an accomplice, and required no corroboration, and as far as record discloses no witness controverted his testimony as to finding the cap wedged under the door. However, the court did not err in admitting the testimony; at least, error is not shown by the bill of exceptions.

The court only instructed the jury as to murder in the first degree. Appellant insists "the court erred in instructing the jury that, if the death of deceased was produced by morphine or chloral, or both, administered by appellant; and if such substances were poisons or constituted a noxious drink, when mixed with beer, and were administered for the purpose of enabling appellant to steal from the person of deceased, appellant would be guilty of murder in the first degree, although the quantity and manner of the use of said drugs may have been an accident or mistake. And the court further erred with respect to said matters in refusing to give special charges requested by appellant presenting the theory, and supported by the evidence, that morphine and chloral are not poisons, and that the homicide might be murder in the second degree." In his brief he has subdivided his objections under four heads, as follows: "(1) All murder of the first degree must come under article 711, Penal Code, and the offense with which appellant is charged, if murder in the first degree, must come under the subdivision ``poison' of said article; if not under that head the offense can not be per se murder of the first degree. (2) If appellant's offense be brought within the provisions of articles 647, 648, and 649, Penal Code, it is no longer murder in the first degree per se, but it would be murder of the first or second degree, to be determined by the jury under proper instructions. (3) Murder accomplished by the administration of a ``noxious potion,' is not per se of the first degree, but to constitute it such the ``noxious potion' must be ``poison.' (4) The statute making murder by poison murder of the first degree refers to ``poison' intentionally used as a ``poison' and does not include murder by a ``noxious' substance not used for the purpose of poisoning, or to harmless drugs that by accident or mistake in the manner of their use, may have produced death."

Appellant insists that articles 647-649, Penal Code, do not make a murder by poison murder of the first degree, nor does it follow that, if one intending to commit a felony shall, through accident or mistake, do another act which if voluntarily done would be a murder, it would necessarily be murder in the first degree; and the statute making a murder by poison does not apply to this character of case. See art. 711. His insistence being that article 711 does not apply to this transaction, and that the court should have given a charge on murder in the second degree. In Tooney v. State, 5 Texas Criminal Appeals, 163, all these articles of our statute came up before the court for construction; and there it was held that the article which is now 711, which makes all murder committed by poison murder in the first degree, also embraces articles 647-649, this being construed also to mean murder by poison to be murder in the first degree. The court in speaking of these last articles say: "Evidently the object of this statute was to reach a class of cases about which doubts might arise when the general statute of murder was sought to be applied to them. Such doubts were more imaginary than real, in our construction of both statutes. It is to be noted that under these latter statutes ``the intent to kill' or ``the intent to injure,' are made to stand in lieu of and must be proven just as ``malice aforethought' under the general law, which, as we have seen, when explained, means nothing more nor less than the taking of life with the intention to do so, or when death results from an intention to do serious bodily harm. In either case, and under this latter as under the former statute, the malicious intent and its proof are not only the same, but are also the very gist of the offense. So utterly revolting to every sense of humanity is the use of poisons as means of injury to and for the destruction of human life, because of the cool, calculating fiendishness, the deliberate craftiness, with which they are administered, and the unsuspecting confidence with which they are necessarily taken by the innocent victim, that the law, in its efforts to suppress it entirely as one of the foulest of all crimes, denounces no halfway penalties against it after it has accomplished the destruction of a reasonable creature in being. Under these last statutes, if death ensues within one year it is murder; and it is murder in the first degree under the express terms of our statutes, because committed by poison." And see Hedrick v. State, 40 Tex.Crim. Rep.. No language could be clearer or more emphatic than this, and it accords entirely with our view in the construction of these statutes. Of course, the statute does not seek to create any new offense of murder, but merely to make all murder, whether of the first or second degree, when it is done by poison, murder of the first degree. Therefore it must be alleged in a case of murder by poison that the killing was done with malice aforethought, and this must be proven; and, whether the proof shows that the killing was done either upon express or implied malice, it is made by the statute then equally murder of the first degree. The intentional administration of poison with intent to kill or inflict serious bodily injury is itself evidence from which malice can be inferred. Whart., Hom., p. 627. But, more than this, at common law, as well as under our statute, one intending to commit a felony, and in its commission, through accident or mistake, and beside his original intention, commits another felony, is as guilty of the last offense as if he had voluntarily done that felony. The intention to commit the original felony supplies the malicious intent as to the one actually committed. Mr. Wharton and Mr. Bishop both appear to concede this to be the rule at common law. Whart., Hom., pp. 58-60; 2 Bish., Crim. Law, p. 418, sec. 727, subdiv. 2. Both, however, appear to doubt the correctness and deplore the hardship in the application of this principle in special cases, but they concede that whenever this matter is regulated by statute the question is settled, as it is competent for the Legislature to do this. Now, we think it follows from our statutes with reference to homicide committed by poison, whenever it is shown that the poison was administered with malice aforethought — that is intentionally and with intent to take life or to inflict injury, the probable consequence of which might end in death, which malice is to be proved as in other cases by circumstances, whether it be express or implied malice — that it will be murder; and, being murder, our statute makes it murder in the first degree. Moreover, when we superadd to this the further proposition that the administration of the poison was with intent to perpetrate the crime of theft from the person (that is, to stupefy the party, and so to inflict injury upon him, in order the more easily to consummate the theft); that the party so engaging is perpetrating a felony; and if, in the consummation thereof, he takes the life of the person he is so attempting to stupefy, by the accident or mistake of giving too much poison — this is the perpetration of murder in the commission of another felony, the original felony itself evidencing the malicious purpose, and so, being murder of any degree, it being accomplished by poison, it is made by our law murder in the first degree. However, appellant says that morphine and chloral are not poisons; that small doses may be given and are frequently given as medicines and to ease pain, and they only become poisons when given in large doses. Grant it; this matter as to whether or not they were poisons as administered was submitted to the jury and they found as administered they were poisons and produced death. Again he says: Grant that appellant administered the morphine and chloral — one or both — he did not intend to kill upon malice at all; that he administered them merely as soporifics in order to lull his victim to sleep so that he might steal from him. In other words he insists there must be an intent to kill before there can be murder of any kind. He asked a number of charges on this subject contravening the charge given by the court. If there was any question of innocent intention here, as where defendant was in pursuit of a lawful purpose and having negligently administered too much morphine or chloral, a very different question would present itself. But he was not in pursuit of a lawful purpose. He was in the pursuit of an unlawful purpose, to wit: theft from the person — a felony. His intention was mischievous in itself and was done deliberately. He was disregardful of the result and he used means calculated in themselves to inflict great bodily injury, the natural and probable consequences of which might result in death. This would have been murder at common law, and much more under our statute, which makes the intent to injure by poison supply the malicious purpose to kill. In other jurisdictions under statutes similar to our own, it has been held, where poison is knowingly administered with intent of mischief and to accomplish some unlawful purpose, if death ensue, it will be murder, although death was not intended, and these statutes, like our own, make it murder in the first degree. State v. Wagner, 78 Mo., 644; — Am. Rep., 131; State v. Wells, 61 Iowa 629; 47 Am. Rep., 822; Ann v. State, 11 Humph., 111; State v. Dowdy, 19 Conn. 387. As we understand the law in this State, the intent to constitute murder must be to take life or inflict such injury the natural consequences of which may cause death. Here, although the testimony indicates that the parties did not directly intend the death of deceased, yet the natural and probable consequences of the poison administered, if in large doses, would be to cause death. We are not informed as to the quantity of morphine actually administered, but more than half a grain was found in the stomach. How much may have been absorbed or eliminated, is a matter of pure speculation; but the purpose of injuring the deceased is further manifest from the quantum of chloral given and the rapidity with which these doses both of morphine and chloral were administered. Without any evidence of skill on their part or knowledge of the quantity of the poisons necessary to produce sleep only, they proceeded to the consummation of their purpose in a manner that manifests to our minds, and doubtless did to the jury, an utter disregard of the effect that the medicines might produce — their purpose being, as they stated, to stupefy so they might rob deceased. As Coleman terms it, they desired to "dope" deceased merely. That their purpose was malicious in that it involved the commission of a felony, and in that it involved the administration of poison, there can be no doubt; that they were inflicting an injury in disregard of the real effect it might produce on the deceased, is clearly evident. Therefore, we do not believe the court was called upon or authorized to give appellant's requested charges to the effect that if appellant's purpose was only to stupefy he would not be guilty of murder.

Appellant also contends that certain requested charges asked by him should have been given, instructing the jury that appellant could only be held responsible in case they believed death occurred from the administration of the morphine, and he would not be responsible if it occurred on account of the administration of the chloral alone or of the chloral and morphine combined. We fail to see anything in the testimony as disclosed by the record that raises an issue of this character. The testimony is of that character that, if appellant is responsible for the death by morphine, he is equally responsible for the death of deceased by the chloral or by the morphine and chloral combined. The conspiracy was for one object and purpose, to wit, to steal the money from the person of deceased, which he had incautiously exhibited in appellant's saloon. The State's testimony shows that appellant was present and participated in the entire transaction; and the fact that he introduced testimony tending to show that he may have been present when the morphine was administered but was absent from the saloon at the time the chloral was given, does not present to our minds any reason why the court should have given appellant's requested charge on the subject. More than this, we think it is manifest that deceased died from the morphine. Nor can we agree with appellant's insistence that this could not be true, because he did not die earlier. According to the State's testimony he died within two or three hours of the first administration of the morphine. The fact that the physician testified morphine took effect in ordinary cases within from fifteen to twenty minutes, we think has no particular significance. The evidence shows that a good while before the death of deceased he showed signs of becoming sleepy. The books teach that in ordinary cases death usually ensues in from six to twelve hours. Mann on Forensic Med. and Tox., p. 553; 4 Whitthaus Becker, Med. Jur., p. 729.

We have examined the record carefully, and think the charge of the court a fair one, presenting every essential phase of the case both for the State and defendant. The evidence in our opinion fully sustains the verdict of the jury. The judgment is affirmed.

Affirmed.

[NOTE. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]