Bussey v. State, 22850.
| Decision Date | 31 May 1944 |
| Docket Number | No. 22850.,22850. |
| Citation | 181 S.W.2d 94 |
| Parties | BUSSEY v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Hunt County; Charles Berry, Judge.
Ray Bussey was convicted of murder, and he appeals.
Reversed and remanded.
T. J. Ramey, of Sulphur Springs, and G. C. Harris, of Greenville, for appellant.
Ramey A. Smith, Dist. Atty., of Sulphur Springs, and Ernest S. Goens, State's Atty., of Austin, for the State.
The offense is murder. The punishment assessed is confinement in the state penitentiary for a term of thirty-five years.
There are two theories presented by the record. That of the State is that appellant deliberately and with a formed design killed his wife, while that of the defendant is that the gun was accidentally discharged as he was trying to tighten up the breech thereof.
Appellant brings forward many bills of exception. Some relate to the action of the court in admitting and excluding evidence, and others relate to the court's charge. We do not deem it necessary to discuss each of the bills in detail in view of the disposition which we are making of this case.
Appellant's first complaint relates to the court's action in declining to submit to the jury his special requested charges peremptorily instructing them to acquit him. We are of the opinion that he was not entitled to such an instruction under the facts and circumstances of this case. That the deceased died as a result of a gunshot wound is shown by the uncontradicted evidence. The only contested issue is whether it was intentionally inflicted or was the result of an accident. To relieve himself of any criminal responsibility he relies upon the fact that the gun was accidentally discharged. Hence the burden rested upon him to establish this fact.
By Bill of Exception No. 9, he complains of certain testimony given by Dr. Long, at the instance of the State, to the effect that different kinds of poison will have different effect; that if strychnine is taken internally it would cause convulsions; that if cyanide is taken, it would cause very violent vomiting; that bichloride of mercury poison, if taken internally, would have a similar effect. To this testimony appellant objected on the ground that there was no sufficient predicate laid for its introduction; that it was highly prejudicial to his legal rights. We think there is some merit in his contention. The evidence complained of was introduced by the State after it had proved that about two days prior to the alleged killing the deceased was ill; that appellant gave her a glass of new grape juice; that she took two swallows thereof; that it hurt her stomach and she began to vomit about 9 or 10 A.M., and continued until about dark. This was the only predicate upon which the State introduced the testimony complained of. It will be noted that the proof is to the effect that she was ill before she partook of the grape juice. There is no fact or circumstance shown that there was any poison of any kind or character in the grape juice which she drank; nor was it shown that appellant had purchased any poison of that kind or character, or that he was in possession of any such poison as caused the vomiting. It is well known that frequently people become ill and vomit; that such fact alone would not justify the introduction of evidence that certain poison would produce vomiting. Of course, if appellant, prior to the time that she was killed, had attempted to murder her by poisoning her, this would be admissible on the issue of intent and motive, but in such event there should be proof stronger than a mere suspicion. If the State had sought to prosecute him for attempting to poison his wife, with no more evidence than that disclosed by the record, it is our opinion that the court would have given a peremptory instruction in favor of the appellant. That this testimony was highly prejudicial is quite obvious, and the argument based thereon would only intensify the inflammatory nature of the same.
From Wharton on Homicide, 3rd Ed., p. 156, the following quotation is taken:
"And while, in a prosecution for homicide by poison, the symptoms and appearances during the last illness become controlling facts in determining whether the death was from poison or from disease, the charge is not made out unless the prosecution negatives everything but poison as the cause of death; and this can only be done by showing affirmatively that the combined symptoms, and the absolutely certain facts with which they are associated, are inconsistent with any other disease or ailment."
From Wharton on Crim. Evidence, 10th Ed., Vol. 2, sec. 787, the following quotation is taken:
"The disease of which the deceased died may not have been induced by poison, since there are few symptoms attendant on poisoning which are not also attendant on certain types of natural disease."
We think the following cases will throw some light on the matter here under discussion: Baker v. State, 112 Tex.Cr.R. 254, 16 S.W.2d 248; Edge v. State, 144 Tex.Cr.R. 480, 164 S.W.2d 677; Pullen v. State, 120 Tex.Cr.R. 42, 46 S.W.2d 1004.
Bills of Exception Nos. 18 and 19 reflect the following occurrence: Upon being arrested, appellant was taken to the office of the County Attorney, and after being warned as required by law, he made a written statement as to the location of the furniture in the room, the positions which he and the deceased were in, and what each of them was engaged in at the time of the unfortunate occurrence. He was then taken from the County Attorney's Office before the grand jury, which was in session at the time, sworn as a witness, and after being warned by the District Attorney, he was interrogated by that body. On the trial the State introduced in evidence his written statement made to the County Attorney, with the exception of the exculpatory part thereof, which he then introduced. Appellant took the witness stand and testified in his own behalf that the statement which he made to the County Attorney was correct so far as it went but that it did not contain all that he said on this occasion; that it was not tied together as he said it; that there were some explanations omitted from it. Thereupon, the District Attorney took the witness stand and testified that while the appellant was a witness before the grand jury he read the statement to the appellant in detail, to which he replied that it was correct; that he then inquired of appellant if he desired to add anything to it, to which he replied: "No, that it was correct as it was." Appellant objected to the testimony given by the ...
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...is in custody would not be admissible to impeach him. Lightfoot v. State, supra, was cited with approval. "In Bussey v. State, 147 Tex.Cr.R. 447, 181 S.W.2d 94 (1944), a murder prosecution, a written statement of the accused was introduced. Testifying in his own behalf, the defendant relate......
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Butler v. State, 44220
...accused is in custody would not be admissible to impeach him. Lightfoot v. State, supra, was cited with approval. In Bussey v. State, 147 Tex.Cr.R. 447, 181 S.W.2d 94 (1944), a murder prosecution, a written statement of the accused was introduced. Testifying in his own behalf, the defendant......
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