Hamlin v. State (39 Tex. Crim. 579, 1898)

HENDERSON, Judge.

Appellant was convicted of being an accomplice in murder, and his punishment assessed at confinement in the penitentiary for life; hence this appeal.

It appears from the record that Walter Holmes was the husband of one Carrie Holmes. They lived together as husband and wife a number of years, and had several children. During the last few years prior to the homicide, -they lived near the village of Santa Anna, in Coleman County. Appellant was a widower, and lived about 300 or 400 yards from them, and in view from the rear of the Holmes residence. The relations of deceased and his wife appear to have been agreeable until about a year prior to the decease of the former, about which time it appears that an attachment sprang up between her and appellant, which resulted in illicit intercourse between them. This was carried on for some time, until at length deceased became suspicious of his wife. On Tuesday morning, December 1, 1896, he called his wife into the room, and accused her of being too intimate with appellant. She finally admitted the fact, and told him that she loved appellant, and that he loved her. On request she produced certain letters from appellant to her, under promise that deceased, after reading them, would return them to her. He read two letters, and returned them to her, but, on reading the third, he retained it. She became very angry, and threatened him if he did not give it back to her. This deceased refused to do, but at once got in his buggy, took his gun with him, and proceeded to the town of Coleman, and there conferred with his lawyer, Mr. Sims, exhibiting the letter to him. Sims advised him not to return to his home, and not to eat a meal in the house again; that his life would be in danger if he remained at home. On the same morning, appellant was informed by Mrs. Carrie Holmes of what had occurred, and he was warned to beware of her husband. Appellant left on the same morning, going to the little town of Glen Cove, about fifteen or twenty miles distant, and remained there until the latter part of the week, ostensibly organizing a lodge of the Woodmen of the World. Deceased returned to his home on that evening, and slept with his wife that night. He and his wife had some conversation about the matter of her infidelity, and it seems there was something like a reconciliation between them. He did not return the letter to his wife. After he had gone to sleep, his wife got up, found the letter in his pocket, and destroyed it. On Wednesday the deceased was taken violently ill, and he continued so until the following Tuesday, when he died. His wife waited upon him during that time, and he also had the attendance of other persons. Physicians were also called in, and during his illness there were several consultations between the physicians as to his ailment. It does not appear that the physicians were able to determine the nature of his illness; nor does the record indicate any apprehension on their part that deceased was suffering from poison. Appellant returned from Glen Cove on Saturday, before the death of the deceased, but it does not appear that he ever went into the presence of the deceased before his death. He was seen on Sunday or Monday, however, in the rear of the premises of the deceased, about his barn, and under circumstances that indicated a conference between him and the wife of the deceased. During the burial service, some circumstances occurred which indicated that some suspicion then existed as to the cause of the death of the deceased. The conduct of appellant and Mrs. Carrie Holmes shortly after the death of Holmes became suspicions. On the evening of the burial, Dr. Hayes, a brother-in-law of deceased (after the burial), rode in the buggy with the wife of deceased on her way home, and some conversation occurred between them with reference to deceased. He subsequently had several interviews with her in rgard to his death. On December 12th an interview occurred between Hayes and Mrs. Carrie Holmes at his house, in the hearing of Hayes’ wife and one Phillips, who was stationed outside of the house at the window. Mrs. Holmes, in this interview, in effect admitted the illicit relations between herself and appellant, and also that she had poisoned the deceased, but refused to inculpate appellant therein. Subsequently to this, about the 8th of February, Dr. Hayes saw appellant at his office, in the town of Santa Anna, and on the evening of the same day interviewed him by appointment at his (Hayes’) house, in regard to the cause of the death of the deceased. During all this time Hayes was busy collecting evidence in the case. On the 20th of February he caused the body of the deceased to be exhumed; and a portion of the intestines, together with a portion of liver and lungs, were placed in a vessel and securely fastened, and sent to a chemist at Fort Worth, to be analyzed and tested as to poisons. Professor Chase, of Fort Worth, finished the analysis of the contents of the stomach on March 5th; and his' testimony shows that the stomach contained a large quantity of arsenic,—“in short, the liver, stomach, and duodenum showing altogether about three and three-quarter grains of metallic arsenic, or five and a fraction grains of white arsenic.” The testimony shows that the ordinary fatal dose of this drug is about two grains. Mrs. Holmes and appellant were indicted for the -crime on the 27th of February, 1897, and were both arrested within a ■short time thereafter and placed in jail. The indictment contains two •counts,-—one charging appellant as a principal in the homicide, and the -other charging him as an accomplice. The court only submitted the question of accomplice to the jury. A great deal of the testimony on the trial relates to the principal in the homicide, alleged to be Mrs. Carrie Holmes. This was limited in the court’s charge to that purpose. The testimony connecting appellant with the offense, aside from certain testimony in the nature of confessions, is purely circumstantial. There are thirty-two bills of exception and twenty-seven assignments of error in the record; but we will only discuss such as we deem material to a proper disposition of this case.

Appellant assigns as error the action of the court in regard to the impahelment of the jury. It seems that Parker had stated on his voir dire that he had an opinion, formed from having heard his uncle, who was a member of the grand jury that found the bill of indictment, express his opinion as to the guilt or innocence of the appellant. The bill fails to show that the grand juror stated to the juror any fact in regard to the case; and the bill further shows that the juror stated that he could give appellant a fair and impartial trial, regardless of any opinion that he might entertain. So far as we are advised, whatever opinion the juror may have entertained was.formed from a purely hearsay source. He had talked with no witness, had heard no testimony, and he was clearly a competent juror, under the rule laid down by this court. See Suit v. State, 30 Texas Crim. App., 319; Adams v. State, 35 Texas Crim. Rep., 285; Trotter v. State, 37 Texas Crim. Rep., 468. It is not attempted to be shown that the juror Templeton, who was subsequently taken on the jury, after appellant had exhausted his challenges, was .not a fair and impartial juror.

Appellant strenuously urges that the court committed a reversible error in permitting the State to prove by the witnesses Hayes and Stanlee a conversation between them and appellant at the residence of Dr. Hayes on the 8th of February, 1897, said testimony being substantially as follows: Witness, told defendant that he (Hayes) and Stanlee wanted him to make a full statement of his and Mrs. Holmes’ connection from beginning to end. In reply, he asked Hayes if he would believe him; to which Hayes replied that he would believe him if he told the truth, but that, if he did not tell the truth, he would not believe him. Appellant then stated that his and Mrs. Holmes’ relations began last Hovember, a year ago; that she wrote him the first letter, but he paid no attention to it, and that she wrote him a second letter, and he answered it; that he advised her it was wrong. Witness then asked him why he kept it up, to which he replied that she kept on and was so persistent that it became so irresistible that he could not help it, and that he got to loving her. Witness then asked him if that was all, and he said, “Yes; that is all.” Witness then said, “How about the twenty-year plan?” to which appellant replied, “That is so; we agreed to marry, and wait for one another twenty years if necessary;” but he told her that Walter Holmes was a stout, robust man, and that he would likely outlive both of them. Witness then asked him about their marriage, and he replied they were to be married on the 17th of December next, if circumstances would permit. Witness then asked him, “What circumstances would prevent if? You are a widower and she a widow.” Appellant replied that he did not know. Witness then asked him how he knew Holmes had his gun, and was going to kill him; and he said Mrs. Holmes told him. He was then asked when she told him, and he said, "The day before Holmes got sick.” Witness then said to him, “Look here, you planned this whole thing, and are a murderer ; and I do not understand how you could have associated with this old man [referring to Dr. Stanlee], and been with him in his office as you have, and be guilty of such a thing;” to which appellant made no reply. Witness then told him he could go> “but asked him to try not to meet us any more on the streets, and to avoid meeting either of us; that we do not want to see you;” and he said he would try to do so as much as he could. The bill of exceptions shows that this testimony was admitted under the following circumstances: On the morning of that day the witness Hayes had called defendant into his and Dr. Stanlee’s office, to have a settlement with him in regard to some transaction. That Dr. Stanlee was the father-in-law of Hayes. Witness used very abusive language to defendant, but said nothing to him about the death of Walter Holmes. That he (Hayes) was armed with a pistol at the time, and, while the altercation was going on, he attempted to close the door of the office. That, in doing so, Hamlin ran against him in getting out of the door. When he did this, Hayes’ pistol fell to the floor, and was not picked up or used during the fight. That, as defendant ran against him, Hayes caught him, and they both went out of the door on the sidewalk, and fell in the street. Hayes got defendant down, and was beating him with hig fists. That A. C. Weaver came up to where the parties were, and started to interfere; and Dr. Stanlee, who was standing near by, would not permit him to do so. Defendant cried for help, and Hayes continued to beat him until other parties came and pulled him off. Hayes went into his office, and defendant went into the drugstore to have his bruises attended to. Hayes followed defendant into the drugstore, and again violently abused him. That while they were in the back end of the drugstore, and in Dr. Matthews’ office, Hayes and Dr. Stanlee told defendant they wanted to have a talk with him, and requested him to come to Hayes’ house that evening for that purpose. They told him they would not hurt him, and assured him, upon the honor of a man, that he would not be hurt if he came, and told him, if he did not come, he (Hayes) would make him (defendant) hard to catch. Defendant promised he would come to the house of Hayes; and he came about 2 o’clock that evening, bringing with him his two little boys, aged 14 and 16 years respectively. Said boys remained on the porch of the Hayes house, while defendant went into the house at the request of said Hayes. Dr. Stanlee was sent for, and, after he came, the conversation above set out occurred. Appellant contends that said statements were not freely and voluntarily made by appellant, but were made under duress or fear superinduced by the conduct of Hayes and appellant’s environments at the time. It is not pretended here that appellant was under legal arrest or in custody of an officer, nor that Hayes and Stanlee had any authority to restrain or offer any promise or inducement .to appellant. The objections to the statements made are solely based on the antecedent circumstances leading up to this meeting, in connection with the surroundings or environments of the parties at that time.

We understand that the same rule is here applicable which applies to a confession at common law (if what was said by appellant at the time can be called a confession). The rule at common law is simply to the effect that it must appear that the confession was freely and voluntarily made before it will be received as evidence against the accused. And confessions were equally as admissible if the party was under arrest or in jail as if made under other circumstances; there being no objection as to the admissibility of the testimony, unless, perhaps, the courts would more closely scrutinize a confession made by a party under arrest or in jail, in order to ascertain if same was freely and voluntarily made. Our statute, however, changes this rule; and, before a confession made by a party who is under arrest or in jail is receivable in evidence, it must appear that same was freely and voluntarily made after the party had been warned or cautioned by the officer that anything he might say would be used in evidence against him. As stated above, the statements or confessions of the party here were not made while he was under arrest or in jail; but it is claimed that he was under such duress at the time as shows that his said statements were not freely and voluntarily made. The rule at common law, and in most of the States, is that the admissibility of confessions is a question solely for the court. After such admission, however, it is competent for the defendant to introduce before the jury all the testimony tending to show that the confessions were not freely and voluntarily made; and where testimony of this character is introduced, either for the State or the defendant, it is the province of the court to instruct the jury that they can look to all the facts and circumstances in evidence in order to determine the degree of credit thejr will attach to the confessions. See note to Daniels v. State, 78 Ga., 98, 6 Am. St. Rep., 242; Johnson’s Case, 2 Lead. Crim. Cas., 570; Rice v. State, 47 Ala., 38; Young v. State, 68 Ala., 569; State v. Freeman, 12 Ind., 100; State v. Dildy, 72 N. C., 325. And this seems to have been the rule formerly in this State. See Carter v. State, 37 Texas, 362; Cain v. State, 18 Texas, 387. But more recently our courts seem to have adopted the rule, where there is testimony tending to show that the confession is not admissible, as where there is any evidence to the effect that the party was under duress or in jail, and not properly warned after the admission of such testimony by the court, to instruct the jury with regard to such confession that if they believed it was made under duress, or when the party was in jail and not properly warned, and that such confession was not freely and voluntarily made, they would exclude it altogether from their consideration; thus enabling the jury to pass upon the question of law,—that is, the admissibility of the confession. See Speer v. State, 4 Texas Crim. App., 474; Rains v. State, 33 Texas Crim. Rep., 294; Sparks v. State, 34 Texas Crim. Rep., 86; Carlisle v. State, 37 Texas Crim. Rep., 108. And this seems to accord with the practice in Georgia and Massachusetts. See Holsenbake v. State, 45 Ga., 44; Stallings v. State, 47 Ga., 572; Mitchell v. State, 79 Ga., 730; Bailey v. State, 80 Ga., 359; Com. v. Cuffee, 108 Mass., 285; Com. v. Nott, 135 Mass., 269; Com. v. Smith, 119 Mass., 305; Com. v. Preece, 140 Mass., 276. However, whether the jury excluded the evidence altogether, if they determined that it was not freely and voluntarily made, or disregarded it, is the same in practical effect. We quote from Mr. Bice as follows: save and except that his feelings were friendly towards Mrs. Carrie Holmes. Appellant then proposed to impeach him by showing that he had made an affidavit to secure temporary letters of administration on the estate of Walter Holmes, to the effect that said Carrie Holmes was wasting and selling the community property of said estate, and was wasting the proceeds, and had not and was not paying off any of the debts of said estate; and, further, that he knew the fact to be at the time that Mrs. Holmes had only sold $415 worth of the property of the estate, and had paid.$1045 of the debts thereof, paying $620 thereof out of her private estate. Without discussing the question as to whether or not this character of testimony would be admissible in impeachment of the witness, the bill should certainly show that said witness, whom it was sought to impeach, was a material witness for the State, or should state some facts proved by him which appeared to be material.

Appellant also objected to the court propounding certain questions to the witness Snyder, who was introduced as an expert by defendant. The grounds of the objection were that the court should not interfere in the examination of witnesses, and that a hypothetical question was not stated to the witness Snyder. The bill fails to show how the court came to ask the question; and it does not show that the question propounded by the court was a leading one. The witness stated that he had heard the testimony of the State’s expert who had made the analysis, and he was then asked upon the hypothetical case, which involved all the testimony, what he thought caused the death of the deceased. We fail to see any impropriety in this action of the court.

Appellant objected to the second, third, fourth, fifth, seventh, eighth, ninth, tenth, and twelfth paragraphs of the charge of the court. By referring to these charges, it will be observed that they are all charges defining malice, and presenting the charge of malice aforethought as an element in the case. By referring to the indictment, it will be seen that the charging part alleges that “Mrs. Carrie Holmes did then and there unlawfully, with malice aforethought, kill Walter Holmes, by poison; and that the said *J. F. Hamlin, prior to the commission of the offense, * * * as aforesaid, did unlawfully and willfully, of his malice aforethought, advise, command, and encourage the said Carrie Holmes to commit said offense, the said J. F. Hamlin not being present at the time of the commission of said offense by Carrie Holmes.” So that, if the charge be objectionable, the indictment is also. The grounds of appellant’s objection are, as we understand it, that our statute makes murder upon express malice a distinct offense, and a homicide by poisoning a distinct offense, and it is not necessary that the latter contain, as an essential element, the charge of malice aforethought. This is not the rule. From time immemorial, a charge of poisoning, as one of its distinctive elements, contains the charge that it was done with malice aforethought. Hnless it was- so done, it is not murder. A killing by poisoning may be either negligent or purely accidental homicide. The rule at common law required that an indictment for poispning contain the allegation "malice aforethought.” See Whart. Hom., sec. 735. In 1 Hale, P. C. p. 455, we find: “He that willfully gives poison to another, that hath provoked him or not, is guilty of willful murder. The reason is because it is an act of deliberation, odious in law, and presumes malice.” The same rule has been folloived in this State. Sec Tooney v. State, 5 Texas Crim. App., 163. We would, moreover, observe in this connection, that certainly appellant can not be heard to complain, because, if his contention be true, it was only necessary to prove homicide by poisoning; but the indictment superadded to this, and the court instructed the jury accordingly, that there must be both poisoning and malice aforethought. If the court had failed or refused to submit a charge requiring the jury to believe that the homicide was committed with malice aforethought, it would have been error.

The court gave the jury the following charge on circumstantial evidence : “In this case the State relies upon circumstantial evidence for a conviction of the defendant; and you are instructed that, in order to warrant a conviction on circumstantial evidence, each fact necessary to the conclusion sought to be established must be proved by competent evidence beyond a reasonable doubt; and all the facts necessary to such conclusion must be consistent with each other and the main fact sought to be proved; and the circumstances, taken together, must be of a conclusive nature, leading on the whole to a satisfactory conclusion, and producing in effect a reasonable and moral certainty of the guilt of the defendant, and ex- . eluding every reasonable hypothesis except the guilt of the defendant. It is not requisite that circumstantial evidence, to warrant a conviction, must demonstrate the guilt of defendant beyond the possibility of his innocence.” Counsel reserved a bill of exceptions to this charge on account of the last clause thereof. It ivas not necessary for the court to have given this last clause, as he had before given a full and complete charge on circumstantial evidence. But the question is: Was the addendum upon the weight of the testimony, and of a nature calculated to injuriously affect or prejudice appellant ? This charge is not usual, and a trial court has done its full duty when it has given the ordinary charge on circumstantial evidence. However, the cautionary charge given as an ab•stract proposition is correct. Whether circumstantial or positive, the evidence in no case is required to be so cogent as to exclude every possibility of defendant's innocence. This is not like the charge in Harrison v. State, 8 Texas Criminal Appeals, 183, 9 Texas Criminal Appeals, 407; nor is it like the charge in Post v. State, 10 Texas Criminal Appeals, 580. In the latter case, however, the court says that, though the charge was upon the weight of evidence, it was not, under the circumstances of that case, of a character to injure the rights of appellant. In White v. State, 19 Texas Criminal Appeals, 343, the charge went to a greater length in being a charge upon the weight of testimony than the charge in this case. The court, however, in that case, says that the main charge given by the court, being a correct enunciation of the law, taken in connection with the qualification, did not mislead or confuse the jury as to the rule of law which had been properly given, and that the same was not prejudicial to the rights of appellant. If said addendum had been calculated to change the rule announced in the main charge, or to modify it, then it might be considered injurious. The main charge instructed the jury that, before they could convict defendant, the testimony must be of a conclusive nature, etc., producing in effect a reasonable and moral certainty that the defendant was guilty, and must further exclude every reasonable hypothesis except his guilt. The addenda in this ease merely stated that, while the rule above given was correct, the hypothesis must not present a mere possibility of innocence, but it must present a reasonable hypothesis. We do not regard the charge as stated above as restrictive of the main charge, or as calculated to mislead or confuse the jury as to the principle announced in the main charge.

The charge was given by the court, applying the law to the facts of the ease submitted to them, and if they believed that Carrie Holmes, of her malice aforethought, did unlawfully kill Walter Holmes, by poisoning said Walter Holmes, as charged in the indictment, and that defendant aided, etc., as charged in the indictment, they should convict appellant of being an accomplice in said murder. This charge was objected to on the ground that the indictment and proof showed an arsenic poisoning only. If there was evidence of any other character of poisoning in the record, there might be something in this objection.

Appellant objects to the court’s charge on insanity of Mrs. Holmes. The objections are not well taken. The instruction is in accordance with the authorities in this State, beginning with Webb v. State, 5 Texas Criminal Appeals, 596, and down to Burt v. State, 38 Texas Criminal Reports, 397. See, also, White’s Ann. Penal Code, par. 51, for collated authorities.

The issue of alibi was not raised in this case. The court submitted alone the charge of an accomplice, and the State’s case did not depend on the presence of the defendant during the commission of the homicide.

As to the other matters complained of in the court’s charge, we would observe that this case is divided into two phases: First, the guilt of Mrs. Carrie Holmes, as the principal in the murder; and, second, the guilt of appellant, as an accomplice with Mrs. Carrie Holmes. A great mass of testimony was admitted by the court that had reference alone to the guilt of the principal. All the testimony admitted in that connection, we think, was properly admitted, and was properly limited as to its purpose by the court; and appellant’s guilt alone was made to depend on the evidence which connected him with the homicide as an accomplice.

The discussion we have given of the court’s charge sufficiently shows that there was no error in the refusal of the court to give the requested charges, and we will not further discuss said charges.

Appellant also objects to the conviction in this case, because he alleges that the court was not authorized to hold a term at the time of the trial of said case. We presume that his contention is that the act regulating judicial districts did not authorize the term of court of Coleman County at the time appellant was convicted. Appellant does not furnish us with any data as to his contention in this regard. There is nothing in this contention.

Appellant insists that the verdict of the jury is not sustained by the evidence. We have examined the record thoroughly, and, in our opinion, the verdict is supported by the evidence. Looking at the record, there can be no question as to the guilt of Mrs. Carrie Holmes, the principal. It is abundantly established, both by circumstantial evidence and by her own confessions, that she poisoned her husband with arsenic, administered to him in water four different times during the week before his death; and the circumstances, we think, amply connect appellant as an accomplice in the charge. We summarize the inculpatory facts as far as appellant is concerned, as follows: The testimony showed his illicit relations with Mrs. Carrie Holmes about a year antedating the homicide. This, in connection with the desire to marry her, was the motive which actuated him in getting rid of the deceased. His going to Glen Cove on Tuesday morning, and remaining there until Saturday, is accounted for only on the hypothesis that Mrs. Holmes informed him on that Tuesday morning of the altercation that occurred between herself and her husband previously on that same morning, with reference to the letter which he (appellant) had -written to Mrs. Holmes; and the further fact, as admitted by him, that Mrs. Holmes informed him on that Tuesday morning of what had occurred, and that her husband had gone to Santa Anna armed, and his life was in danger. His conduct during the sickness of deceased, when he was suffering with poison administered by his wife, also tends to show guilty knowledge on his part. Though he lived within half a mile of deceased, was his" neighbor, and in the habit of getting milk at his house, after his return from Glen Cove (which was on Saturday before deceased’s death, on Tuesday), appellant did not go into his presence, but was seen in the rear of the premises in the vicinity of the barn under circumstances that showed that he and the wife of the deceased had held an interview. This was on Sunday. On the night after the death of the deceased, he was seen to have a private conversation with Mrs. Holmes on the gallery of their house. His conduct at the grave the next day, when the pigeon was turned loose, was a circumstance against him; as was also his conduct on the night after the burial, when he was seized with horrors, saw spirits, and physicians had to be sent for and neighbors called in to attend him; and the further fact that, the next morning after the burial, he had a private interview with Mrs. Carrie Holmes, at the house of Dr. Hayes, which is not explained. Appellant not only admitted his illicit relations with the deceased’s wife antedating his death, but also that their marriage was agreed upon. In that connection, he told deceased’s wife that Holmes was robust, and was calculated to outlive either one of them; but he said ho would wait for her, if it was tweffir ji-ears. Furthermore, he admitted in January (after the death of deceased, on December Sth) that he and Carrie Holmes were to be married in the coming December, unless something happened. And in addition to all this, as evidence strongly inculpatory, after the homicide he addressed a letter to Mrs. Holmes, avowing his affection and trust in her, and beseeching her iC not to give him away.” These, and other facts we might mention, it occurs to us, are of a conclusive nature, establishing his guilt bejmnd any reasonable doubt; and the jury were fully authorized in finding the verdict they did. There being no reversible errors in the record, the judgment is affirmed.

Affirmed.

"Hurt, Presiding Judge, absent.

[Mote.—Appellant’s motion for rehearing, filed Hovember 14, 1898, was overruled without a written opinion, March 1, 1899.^-Reporter.]