Bailey v. State

• Decision Date: 24 January 1912
• Citation: 144 S.W. 996
• Parties: BAILEY v. STATE.
• Court: Texas Court of Criminal Appeals

144 S.W. 996

BAILEY v. STATE.

Court of Criminal Appeals of Texas.

January 24, 1912.

On Motion for Rehearing, March 13, 1912.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Erath County; W. J. Oxford, Judge.

J. K. Bailey was convicted of murder, and appeals. Affirmed.

Chandler & Pannill, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER J.

Appellant was indicted by the grand jury of Erath county, charged with murder, it being alleged that he committed the offense by mixing and putting arsenic in coffee. When tried, he was convicted and his punishment assessed at confinement in the penitentiary for life.

The state relied on circumstantial evidence. It showed by Ulpian Holt, a druggist at Stephenville, that about a week before the death of J. A. Alexander he sold a nickel's worth of commercial arsenic to a young man, not as tall as the witness. He said he was not able to identity the defendant as the man to whom he sold the arsenic, could not say that defendant even looked like the man. Sheriff Cox testified he had occasion to summon defendant before the grand jury about a week before Mr. Alexander's death, and that he saw defendant in Stephenville about that time. It is shown that defendant and his wife were keeping house for the deceased and his family, and that on the morning of the alleged poisoning he was the first to get up and made the fire in the stove and made the coffee. That at breakfast that morning deceased, his son, Henry Alexander, appellant's wife, and appellant took coffee, none of the others present at the breakfast table drinking coffee. Deceased, his son, Henry Alexander, and appellant's wife after drinking the coffee became violently ill, and the elder Alexander died in about four hours. Those who did not drink coffee were not affected. Two doctors were called in to attend the sick, and they administered the same character of medicine to deceased, his son, appellant, and his wife, all claiming to be sick. The doctors by their testimony say deceased died from the effects of the poison; that the son, Henry Alexander, and appellant's wife were violently and dangerously ill from the effects of drinking the coffee. Their testimony would not indicate that appellant was not seriously affected, and some of the witnesses say that appellant poured coffee out in his saucer but did not drink it, while other witnesses testify that he was affected in the same way as his wife and Henry Alexander. Mrs. Alexander, at the suggestion of Dr. Farmer, poured a part of the coffee in a bottle and gave to him the two coffeepots used by the family. Dr. Farmer carried these pots and the coffee in the bottle to Prof. Needham, a chemist at Ft. Worth, who testified that he received the pots and coffee from Dr. Farmer, and they had been in his possession since that time and kept locked up. That he made a thorough and scientific analysis of the coffee in the pots and in the bottle. He found the coffee in the bottle to contain arsenic, and found arsenic in the coffee in the blue enameled coffeepot. The witness then exhibited to the jury the contents of the blue enamel pot, calling attention to particles of what he termed or named as arsenic, stating to the jury: "Here is some of it. Here is some. There is a whopper; here is more," etc. "You can see that for yourself." "There's another." "There are many of them visible to the eye." "All that is arsenic." "There is an immense amount of it in there." "See, there is more of it." "You can see them on the edge of the coffeepot." This was the pot the witnesses say in which the coffee was made that deceased and the others drank.

As a motive for the crime, the state proved that about a year before this appellant had taken out a policy of insurance on the life of his wife, payable to himself. That he had signed two applications, one for himself for $1,000 on his life payable to his wife, and one on the life of his wife for the same amount payable to himself. That he carried the applications to a doctor who signed the health certificate, without examination of the wife, he being the family physician. The policies were issued and found in appellant's trunk after deceased's death, the evidence not showing that his wife knew that a policy had been obtained.

1. This is a sufficient statement of the evidence to render intelligible the discussion of the bills of exception in the record. Eugene Dumas testified that prior to the arrest of defendant he had worked with defendant with the road-working crew, and while at such work defendant had said that he had a book or catalogue with some mighty pretty pictures in it of women advertising for husbands, and had said, "Let's write to some of them." The state then introduced six post cards found in appellant's trunk written by ladies from Clay Center, Ohio, Greensburg, Ind., Brawley, Cal., and Temple, Me., addressed to J. K. Bailey, Dublin, Tex. To the introduction of these cards defendant objected, because said post cards had not theretofore been identified, and because it was not shown that the same were ever received by the defendant nor had been in his possession and because no sufficient predicate had been laid for the introduction of said post cards in evidence, and that said cards were irrelevant and immaterial to any issue in the case, and could throw no light on any of the issues in said case, and were prejudicial to the rights of the defendant, and could only be used for the purpose of prejudicing the jury against him, and because that from said post cards no reasonable or just conclusion could be drawn of any bad conduct or bad motive on the part of the defendant. The court in approving the bill stated that Henry Alexander testified he had got each of the post cards from defendant's trunk subsequent to his arrest, and this statement is borne out by the evidence. The cards being addressed to appellant, found in his possession, postmarked at the several points named, and signed by ladies, under the theory of the state that appellant had taken out an insurance policy on the life of his wife the year previous, and it was his purpose to poison his wife, as a circumstance it was permissible to show that he, a married man, was in correspondence with various unmarried ladies. It may have been entitled to but little weight, but its weight is for the jury. In a case of circumstantial evidence where it is shown that three persons are poisoned, one of whom was appellant's wife, it is permissible to show motive by isolated circumstances, if the jury should find that appellant was the person who placed the arsenic in the coffeepot.

2. The appellant also objected to the state being permitted to prove by the witness Holt: "All I remember is that about a week before this poisoning in the Alexander family I made a sale of some arsenic along in the first part of the week, and this was also the week before Sheriff Cox came to the store and had a talk with me about the sale and the matter of the poisoning. I think Cox came in in the latter part of the next week after I made the sale and asked me about it. I did make a sale of some arsenic at the time I mentioned, and that is as near as I can fix the date of the sale. The amount sold was a nickel's worth of commercial arsenic. This is crude arsenic and is a cheap article and about one-fifth the price of the other grade, and a nickel's worth in quantity being about a half handful. The person who came in to purchase the arsenic was standing by when I weighed it out, and as I was doing so and had about half of it weighed he said that was enough. I told him that was not a nickel's worth, and to this he said he didn't care, that that much was all he wanted. The man purchasing the arsenic was not as tall as I am, and standing by me was lower than I. I do not remember as to the probable age of the man, but, the best I remember about him, he was a young man. I am not able to identify the defendant as being or not being the man that purchased the arsenic from me. I am not able to say either way. I cannot identify the defendant one way or the other, whether he was the man who bought the arsenic, or whether he was not." The court in approving the bill says the evidence shows that deceased was poisoned with commercial arsenic, the same kind that the witness says he sold. This testimony was followed by the testimony of Sheriff Cox, who testified that appellant was in town about the time this arsenic was sold, was a young man not so tall as the witness Holt, and the further testimony that defendant had made the coffee in which the arsenic was found. This being a case of circumstantial evidence, the testimony was admissible to be considered along with other circumstances by the jury.

3. The state introduced in evidence a statement made by defendant before the grand jury of Erath county. It is as follows: "My name is J. K. Bailey. I understand that I am accused of poisoning the Alexander family, and of killing J. A. Alexander by poisoning him, and I have been warned by Ben Palmer, the district attorney, in the presence of the grand jury of Erath county, that I am suspected and accused of committing said crime of murder by poisoning, and also warned that I do not have to make any statement — all, and that any statement that I might make can be used in evidence against me and not for me, and with this understanding I hereby make the following statement freely and voluntarily to the grand jury of Erath county, Texas: On last Monday morning I got up between five and six o'clock; there was no one else up when I got up. I made a fire in the heater and then made a fire in the cook stove. I then took the coffeepot that the grounds were boiled over in and threw out the contents and rinsed out the pot. I then empties the coffee grounds out of the other coffeepot into the first pot. I then put some water into the second pot and ground some coffee and put in the second pot. I ground a teacupful...