Long v. State

Conviction for murder; punishment, twenty-five years in the penitentiary.

In this case it was the state's theory, based on circumstantial evidence, that appellant poisoned her husband by giving him strychnine. Deceased habitually used Sal Hepatica. He took a dose of this powdered medicine, became violently ill, and shortly died in convulsions. The bottle of Sal Hepatica from which the dose was taken, upon analysis, was found to contain strychnine, likewise the stomach of deceased. Deceased and appellant lived at Kingsville, Kleberg county, Texas. A clerk in a drug store at Corpus Christi, Texas, testified that shortly before the death of deceased he sold to appellant a bottle of strychnine, and that in his presence and at his request she wrote in his register of poisons sold, her name, address and the purpose for which she desired said poison. The witness produced the book, identified appellant and her writing, and same was introduced in evidence by the state. According to this witness she wrote in said register "Mrs. J. D. Moore — Midway Camp — Strychnine for dogs." The state also made proof that there was no Mrs. J. D. Moore registered as a guest at Midway Camp in Corpus Christi at said time.

Thereafter appellant took the stand as a witness in her own behalf and specifically denied being in said drug store and the purchase or use of strychnine, and also denied that she wrote anything on said poison register. Bill of exception No. 13 sets forth that on cross-examination, over objection of appellant, the court compelled her to write in the presence of the jury certain signatures, including Mrs. J. D. Moore, and the words "Middle of December," the objection to this being that same was compelling the defendant to give evidence against herself in violation of the Constitution and Bill of Rights.' (Constitution, art. 1, sec. 10).

With the utmost deference to the views of others, to the writer the principle involved and applicable is clear, and the rule obvious. As said in Gallaher v. State, 28 Texas App., 247,12 S.W. 1087, 1095, cited by appellant herein: "It was the privilege of the defendant to not give evidence against himself, but it was within his power, and was his right to waive such privilege, and, having done so, he can not complain. * * * We have found no authority, and have been referred to none, which holds that a defendant may not voluntarily give evidence against himself, or may not accede to a proposal to give evidence against himself."

An ordinary witness has no right of option to choose whether he will become such, but may be forced on the stand by compulsory process, and hence in obedience to our law he may thereafter, in a proper case, decline to answer questions whose answers would tend to criminate him. The accused, on the other hand, knows in advance of becoming a witness, that if he take the stand the state will seek to elicit from him every fact affecting his status as a witness and pertinent to his guilt in the particular case on trial. Prior to becoming a witness he is wholly immune from inquiry. The Constitution protects him. When he elects to waive its shelter he thereby abandons his right to refuse as a witness. He may not thereafter give answer only to such questions as those whose reply would favor himself, but must yield to all pertinent inquiry. His voluntary offer of personal testimony deemed by him competent and material to the issues, amounts to a waiver on his part as to any relevant fact, because each relevant fact is and must be but a part of the whole case. Nor are we able to draw the fine distinction that the accused may give testimony with his lips or by gestures, and be cross-examined as to same, but that he may not be asked to give manual demonstration of matters material. The point here immediately at issue; that is, did she write, was affirmed by the clerk of the drug store mentioned, and was by appellant pointedly denied by her oral statement. Comparison of handwriting by the use of authentic signature, is a form of testimony quite common in all jurisdictions. In this state by the terms of article 731, C. C. P., such comparison is specifically authorized by the jury itself. Fry v. State,86 Tex. Crim. 73, 215 S.W. 560; Cone v. State,89 Tex. Crim. 587, 232 S.W. 816. We know of no rule of reason or law that would compel the state to rest upon its cross-examination of the verbal denial by the defendant, and which would refuse the state the right to have her give before the jury her undeniable signature which might then be used for purposes of comparison and the verification or destruction of her story. As said in Foster v. People, 18 Mich. 275: "The right to decline answering as to these minor facts, is merely accessory to the right to decline answering to the entire criminating charge, and can be of no manner of use when that is once admitted; and must be regarded as waived when the objection to answering to the complete offense is waived. The law does not endeavor to preserve any vain privileges; and such a privilege as would allow a witness to answer a principal criminating question, and refuse to answer as to its incidents, would be worse than vain; for, while it could not help the witness, it must inevitably injure the party, who is thus deprived of the power of cross-examination to test the credibility of a person who may, by avoiding it, indulge his vindictiveness or corrupt passions with impunity. * * * And the further consideration is also recognized, that a witness has no right, under pretense of a claim of privilege, to prejudice a party by a one-sided or garbled narrative."

In Connors v. People, 50 N.Y. 240, it is said: "The prohibition in the Constitution is against compelling an accused person to become a witness against himself. If he consents to become a witness in the case voluntarily, and without any compulsion, it would seem to follow that he occupies for the time being the position of a witness with all its rights and privileges, and subject to all its duties and obligations. If he gives evidence, which bears against himself, it results from his voluntary act of becoming a witness, and not from compulsion. His own act is the primary cause, and if that was voluntary, he has no reason to complain."

We further quote from State v. Wentworth, 65 Me. 234, 20 Am. Rep., 688: "He was not obliged to testify. He does testify. * * * He exonerates himself. He denies the commission of the offense charged. He is subject to cross-examination as the necessary result of his assuming the position of a witness. * * * If he discloses part, he must disclose the whole in relation to the subject matter about which he had answered in part. Answering truly in part with answers exonerative, he cannot stop midway, but must proceed, though his further answers may be self-criminative. Answering falsely as to the subject matter, he is not to be exempt from cross-examination because his answers to such cross-examination would tend to show the falsity of those given on direct examination. If it were so, a preference would be accorded to falsehood rather than to truth."

From Serrato v. State, 74 Tex.Crim. Rep.,171 S.W. 1133, 1142, we quote the following: "And when defendant takes the stand as a witness he is subject to the same rules as any other witness. He may be impeached, attacked, sustained, bolstered up, made to give evidence against himself, cross-examined as to new matter, and treated in every respect as any other witness testifying in behalf of defendant. Hare v. State, 56 Tex.Crim. Rep., 118 S.W. 544; Mirando v. State,50 S.W. 714; Jackson v. State, 33 Tex.Crim. Rep.,26 S.W. 194; Hutchins v. State, 33 Tex.Crim. Rep.,26 S.W. 399; Huffman v. State, 28 Texas App., 177, 12 S.W. 588; Brown v. State, 38 Tex.Crim. Rep., 44 S.W. 176; Pyland v. State, 33 Tex.Crim. Rep., 26 S.W. 621; Thomas v. State, 33 Tex.Crim. Rep., 28 S.W. 534; Hargrove v. State, 33 Tex.Crim. Rep., 26 S.W. 993; May v. State,33 Tex. Crim. 74, 24 S.W. 910; Monticue v. State,40 Tex. Crim. 531, 51 S.W. 236; Hamblin v. State, 41 Tex. Crim. 142,50 S.W. 1019, 51 S.W. 1111; Alexander v. State,40 Tex. Crim. 404, 49 S.W. 229, 50 S.W. 716; Brown v. State, 57 Tex.Crim. Rep., 122 S.W. 566; McFadden v. State, 28 Texas App., 245, 14 S.W. 128; Mendez v. State, 29 Texas App., 608, 16 S.W. 766."

Considering the authorities cited by appellant on his point, we observe that Gallaher v. State, 28 Texas App., 280, says nothing pertinent. When, as revealed by the opinion in that case, the accused was asked to stand and put a hat on his head and handkerchief over his face in the court room so that he might be viewed thus garbed, the accused made no objection but complied. We find some dicta expressions in the opinion which go no further than to observe that if the accused had refused when requested, as above stated, a different question would be presented. In the above case the accused had not taken the witness stand. Martin v. State, 80 Tex.Crim. Rep.,189 S.W. 262, is cited and has in the opinion some dicta expressions, the court having theretofore said that the bill of exception presenting the point was not sufficient. The part of said dicta relied on, especially as applicable here, as laying down a rule that writing done in the presence of the jury may not be used for purposes of comparison, was said without analysis or discussion of any authorities on the principle involved, but only upon authority of cases collated by Mr. Branch at page 863, section 1411, of his Annotated P. C., reference to which discloses the citation of two cases by Mr. Branch supporting the proposition that it is error to permit the prosecuting witness to write his name in the presence of the jury, and then have that signature submitted to the jury as a standard of comparison by the state in an effort to show that said witness did not write an alleged forged document which the accused claimed said witness did in fact write. That a state witness, claimed by the defense to have written the alleged forged instrument, might go on the witness stand, examine said written instrument, assert on cross-examination that he did not write it, and then, with every reason of self-serving, make a written copy of said document probably as different from the original as possible, and the state then offer this for the purpose of bolstering and supporting the denial of the witness, — seems correctly held inadmissible in both cases cited by Mr. Branch. We have in the instant case no such proposition, but in fact one just the opposite. In this case the state boldly called on the opposite party to write and permit a comparison of her writing with that in question, well knowing that she had seen the written register and had every reason to write differently if she could. We are compelled to conclude that what was said in the Martin case, supra, has no application here. We agree with the rule laid down by the two cases cited by Mr. Branch. We think a more nearly correct rule as applied to the case at bar is found in Williams v. State, 27 Texas App., 471, 11 S.W. 481; Hunt v. State, 33 Tex. Crim. 252,26 S.W. 206; and Ferguson v. State, 61 Tex. Crim. 152, 154, 136 S.W. 465, in which latter case Judge Davidson, discussing the objection that the document offered as a standard for comparison of handwriting was written by the accused while under arrest and unwarned, qotes approvingly from Hunt's case, supra, as follows: " 'The act of signing the document was neither an admission nor a confession by the defendant. It was not an act tending to show guilt. It does not come within the letter or reason of the rule. The fact that defendant was in custody when he signed the application would not likely affect the signature in any manner so as to render it unfit for use as a standard of comparison. That he did sign it was no evidence against him. There was no error in the matter.' "

We are inclined to question what is said in Turman v. State, 50 Tex.Crim. Rep., 95 S.W. 533, to the effect that one who has voluntarily taken the witness stand may not be required to place a cap on his head for the purpose of being seen thus garbed by a girl whom he is accused of attacking. It seems admitted in that case that no supporting authority had been found, and that the holding in same is contrary to what had been said by this court in Bruce v. State, 31 Tex. Crim. 590,21 S.W. 681, and the authorities cited therein. See Bryant v. State, 18 Texas App., 115; Walker v. State, 7 Texas App., 245; Meyers v. State, 14 Texas App., 35; Hart v. State, 15 Texas App., 202. In Pitts v. State, 60 Tex. Crim. 524,132 S.W. 801, speaking through Judge Ramsey, we upheld the reception of testimony that after arrest the accused was compelled to place his foot by and in a certain track. The Turman case, supra, seems not to have been followed on this point in any subsequent case, and to be out of line with other holdings of this court and with what we conceive to be the correct principle of law, and is not regarded as authority against our announcement in this instant case. Appellant cites Thompson v. State, 90 Tex.Crim. Rep., 234 S.W. 401. That case is not like the one before us, and we further note that at the time the appellant in the Thompson case was asked to stand up in order that the witness might more clearly see him, he had not taken the witness stand and had not waived his constitutional privilege of not giving evidence against himself, — which we consider the very decisive point to be considered in all such cases.

What we have said above disposes of the further objection made by appellant to the use, for purposes of comparison by the jury, of what appellant wrote while on the witness stand, these being the grounds of the objection and exception in said bill, and same have been considered, though presented in one bill, inasmuch as they are so closely related as to amount to but one subject.

Bill of exception No. 14 complains of the refusal of a new trial sought because apparently of misconduct of the jury or the prior prejudice of one member of the jury. Oral testimony was heard by the court and in same the affidavits attached to the motion for new trial appear to have been contradicted, and we are not prepared to say that in the condition of conflict appearing the court was without ample reason for overruling said motion. This also applies to the refusal of a change of venue, complaint of which appears in bill of exception No. 15.

We do not think the argument complained of in bills of exception Nos. I and 2 of such character as to call for a reversal. The court instructed the jury not to consider the argument set out in bill of exception No. 1.

Bill of exception No. 5 sets up that the witness Mayo was permitted to testify upon re-direct examination by the state that a forgery case against him, inquiry regarding which had been made by appellant on cross-examination, — was not tried, and to explain the reasons why, as well as to further explain why he did not appear for trial at a time when his bond was forfeited, a fact developed on cross-examination. These questions having been brought out on cross-examination for the purpose of affecting the credibility of the witness before the jury, brings the matter well within the rule laid down in section 94, Branch's Annotated P. C., where many cases are cited holding that a witness may explain any fact brought out which may tend to discredit him. Bruce v. State, 31 Tex. Crim. 594,21 S.W. 681; Hedrick v. State, 40 Tex. Crim. 535,51 S.W. 252, are among the authorities cited. See, also, Moehler v. State, 98 Tex.Crim. Rep., 265 S.W. 553.

Bill of exception No. 6 sets out appellant's objection to the testimony of Mr. Wardlow, chief chemist of the department of health at Austin, who testified that he received by express in September, 1929, a package from Dr. A. C. Jones of Kingsville, Texas, containing a stomach and a bottle of Sal Hepatica, both of which he examined and found to contain styrchnine in quantities sufficient to produce death. The witness further testified that the results of his analysis he wired to the authorities at Kingsville, and that he made written reports, which we find set out in the statement of facts of date September 16, 1929. Appellant's objection was that there was nothing to show the stomach examined and analyzed was that of deceased, or the bottle the one from which he took the alleged poison. We are of opinion that the objection goes to the weight and not to the admissibility of the testimony. Dr. Jones testified that he removed the stomach from a man named Long at Kingsville, and sent same, together with a dog's stomach and a bottle of Sal Hepatica, by express to Austin in September, 1929, and that he received by mail a report of the analysis and examination of said things from Austin. He testified further that before sending the bottle to Austin he tasted its contents and it was very bitter, — that strychnine and quinine were both very bitter. By another witness who knew deceased, it was shown by the state that witness took a bottle labeled Sal Hepatica from beside the body of deceased and that he gave it to Dr. Jones in the same condition he found it. He testified that he was present when Dr. Jones removed from the dead body of deceased its stomach. We think said stomach and bottle sufficiently identified to justify the admission of Mr. Wardlow's testimony as to the result of his examination.

Appellant as a witness swore that deceased was a maker and drinker of beer; that he frequently got drunk, and was arrested for driving a car while intoxicated; that he assaulted and maltreated her. On cross-examination she testified as follows:

"I said that I married my husband, Jim Long, in 1917. He did not join the army of the United States. He was drafted. He became a soldier. He went from Victoria to San Antonio and to Fort Worth and to Jacksonville, Florida, and to France."

This was objected to. We do not think the admission of this testimony, if error at all, was of such material character as to call for a reversal.

Mr. Branch says in section 344 of his Annotated P. C., with citation of many authorities, that a wide discretion is confided to the trial judge regarding application of the "rule," and that except in clear cases of abuse of his discretion, the action of the trial court in refusing to permit witnesses to testify who violated the rule or who were not put under the rule, will not be revised. Thomas v. State,33 Tex. Crim. 615, 28 S.W. 534; Powell v. State, 50 Tex. Crim. 592,99 S.W. 1005, are among those cited. The admissibility of the testimony of a witness who was not placed under the rule when invoked, being a matter addressed to the sound discretion of the trial court, we must presume correctness in the court's ruling unless the contrary appears. We do not think there was any abuse of the discretion of the trial court in the case before us in sustaining the objection to the testimony of the witness Carter who appears to have been in the court room and heard witnesses testify about the very matter about which he was later called to testify.

As to bills of exception Nos. 9 and 9 1/2 which reflect appellant's objection to the testimony of a witness that he examined the guest register at Midway Camp at Corpus Christi and that same did not show the name of Mrs. J. D. Moore, we observe that testimony of one who has examined a book such as the one in question and is prepared to say what it does not show, is not objectionable as secondary or hearsay. Strong v. State, 18 Texas App., 24; Evans v. State, 40 Tex. Crim. 57,48 S.W. 194; Ferguson v. State, 79 Tex.Crim. Rep.,187 S.W. 476; Moore v. State, 87 Tex.Crim. Rep.,219 S.W. 1097.

Bill of exception No. 11 sets out that state witness Moseley testified that appellant's reputation for being a peaceable law-abiding citizen was bad, but on cross-examination he said that when he spoke of the general reputation of appellant and said it was bad, he had reference to her moral character or reputation for chastity. Appellant moved apparently to strike out all the testimony of the witness. Such motion was correctly denied by the court in as much as the witness had given much other material evidence. If appellant would say that we ought not to hold her bound by the exact language of said bill of exception, we might agree provided the same lenience be accorded the state. The statement of facts shows that after having made the answer upon which appellant predicated her motion to strike out, the witness went further and said he knew the difference between law-abiding and reputation for chastity. Clearly the motion as made and set out in this bill of exception was properly denied.

We see nothing wrong with the form of the verdict which simply found appellant guilty as charged in the first count of the indictment and affixed a penalty. Nor do we think the jury without sufficient facts before them upon which to predicate the verdict of guilty and the punishment fixed. Some of the testimony is disgusting in its details. The illicit love of one person for another has often been held sufficient motive for murder, and has some times caused war. The abundant evidence to support such motive in the instant case, — the form, time and manner of the death of deceased by strychnine poisoning, the identification of appellant as the purchaser of strychnine in a town other than the one in which she lived shortly before deceased was poisoned, her denial of such purchase, the apparent flimsiness of the suggested use of poison by another woman, — seem to leave little, if any, room for doubt of the correctness of the decision of the jury. We have given this case careful consideration and find in same no reversible error.

The judgment will be affirmed.

Affirmed.