Davis v. State

• Decision Date: 27 June 1908
• Citation: 114 S.W. 366
• Parties: DAVIS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 366

114 S.W. 366

DAVIS v. STATE.

Court of Criminal Appeals of Texas.

June 27, 1908.

Rehearing Denied December 10, 1908.

Appeal from District Court, Parker County; J. W. Patterson, Judge.

Joe Davis was convicted of murder in the first degree, and he appeals. Reversed and remanded.

A. A. Clark, E. N. Kirby, B. D. Shropshire, and Stubblefield & Patterson, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was indicted in the district court of Shackelford county, on the 19th day of October, 1904, charging him with the murder of his wife, Olga Davis, by poisoning. There are eight counts in the indictment, and the murder of Mrs. Davis by poisoning was charged to have been committed by administering quinine and cyanide of potassium; quinine and strychnine; cyanide of potassium; strychnine and quinine; and other poisons. The case, after several changes of venue, came to be tried in Parker county, where on the 9th day of November, 1907, appellant was convicted of murder in the first degree, and his punishment assessed at death.

The evidence in the case is very voluminous, and it will be impossible to do more than to give a brief summary of enough of the facts to illustrate and render intelligible our opinion. The deceased was, at the time of her death, staying with her parents near the town of Moran, in Shackelford county. She was many months advanced in pregnancy, and the time for the birth of a child had almost arrived. A very short time prior to her death she and her husband made a journey in a buggy to the town of Clyde, in Callahan county, a distance of 25 or 30 miles, to visit an uncle of appellant and returned home the next day. On their return appellant and his wife went to the tank in an open pasture and took a bath, or deceased, at least, took a bath in a tub. The evidence shows that they returned from their journey to Clyde on Wednesday, and that deceased took her bath in the open air on the Thursday night following. About midnight on that night, Mrs. Davis was discovered to have been taken very suddenly sick and died in a short time, living probably from half an hour to an hour after her mother discovered her sickness. Her mother, Mrs. Bills, gives substantially this account of her daughter's sickness: She says: That Mrs. Davis had been in the habit of usually coming to her room before retiring at night, but on the night of her death for some reason she failed to do so. That quite well on in the night, she got up from her room to go into the room of her daughter, Mrs. Davis, and about the time she was opening her door her attention was attracted by a noise in her daughter's room. That she went to the door and knocked, and that appellant invited her in, and that at the time appellant had his hand upon his wife's stomach holding her as she thought. That she asked her daughter if she was sick, meaning to inquire whether she was about to be confined. That her daughter was gasping for breath. That she kneeled down over her daughter, and at the time smelled a very strong scent, which almost strangled her, and that her daughter said: "O, mamma, my head, and such a strange tingling feeling came over me." And then said: "Mamma, this is death." That she, Mrs. Bills, then got up and lit a lamp, and when she looked back her daughter, Olga, was very purple, and there was a stare in her eyes. J. W. Bills, father of deceased, was present at the time of her death, but did not testify. Her two half-brothers, Newt and Ralph Hale, were present when Mrs. Davis was taken sick, but were sent for Dr. Dingle. The testimony of neither of these half-brothers particularly support the testimony of their mother, Mrs. Bills. Upon the testimony of Mrs. Bills, as a predicate, the state introduced Prof. Seth Morris of the State University, who qualified as an expert and gave, at some length, a statement as to the symptoms and effect of cyanide of potassium poison, and, basing his judgment upon the testimony of Mrs. Bills, asserted it as his opinion that Mrs. Davis probably came to her death from cyanide of potassium poisoning. Dr. McNalley, another witness for the state, testified substantially to the same effect. The appellant introduced on this matter Dr. W. Y. McKinzey of Weatherford, who testified, in substance, that he had been a practicing physician for 24 years. In reply to a question by the state, in which the facts testified to by Mrs. Bills were stated quite as strongly as her evidence would justify, Dr. McKinzey stated that the death of Olga Davis could have been caused from an embolism, a puerperal convulsion, a convulsion that comes in child labor, or from poison. Dr. Dingle, who was called to see Mrs. Davis, testified to attending her and to giving her artificial respiration by working her arms, etc., and also testified that he did not detect any unusual odor about Mrs. Davis, nor did he testify to any other symptoms of poison which appear in the testimony of Mrs. Bills. Mrs. John Cane, a witness for defendant, testified that she was called to the home of Mrs. Bills on the occasion of the death of Mrs. Davis and assisted in the preparation of the body for burial, and that she did not detect any unusual odor when she went into the room where the remains were, but that she did detect an odor as of decomposition at the time her lower limbs were being handled. It was shown in the testimony of Dr. McKinzey that the symptoms of an embolism were in many respects identical with the symptoms of cyanide of potassium, as testified to by Dr. Morris. In keeping with the request of Mrs. Davis, she was buried at Beaumont, and, something like a month after her interment, Dr. Morris made an investigation and found no trace of poison, though the evidence developed that this poison was such as that was not likely or necessarily to be discovered by the most careful examination after this lapse of time. The state offered in evidence copies of six letters shown to have been written by defendant to one Clara Cheshier, or Clara Jones. The purpose of this testimony was to show the infatuation of appellant for this woman, the motive for the death of his wife, and also claiming that the letters themselves contained evidence and admissions that he intended to kill his wife. These letters evidence a mad infatuation on the part of appellant for this woman, and contain some expressions consistent with the claim of the state of a purpose on the part of appellant to kill his wife. Appellant was shown to have purchased, or at least paid for, some considerable quantity of strychnine and cyanide of potassium, though it is rendered possible that this may have been intended for the purpose of killing wolves. There was no evidence of any actual quarrel between appellant and his wife or any threats to do her violence, unless such threats may be inferred from statements contained in his letters. Other facts necessary to an understanding of the case will appear later on in the opinion.

It is shown by bill of exceptions No. 1 that the state placed Prof. Seth A. Morris upon the stand, who testified that he was professor of chemistry in the University of Texas, that he had had experience with cyanide of potassium with animals only, and that he was familiar with the symptoms of cyanide of potassium from his experience with it on animals and from studying, lecturing, and teaching, and among other things: "I have heard the testimony of Mrs. J. A. Bills and other witnesses in regard to the death of Mrs. Olga Davis. I have testified as to the symptoms of cyanide of potassium." After said witness, Prof. Morris, had testified as above set out, counsel for the state propounded the following questions to the said witness: "I will ask you whether or not, in your judgment, in your opinion as an expert, based on the testimony of Mrs. J. A. Bills, as to the manner in which her daughter died, the manner of her death, and the symptoms attending her death, whether or not, in your opinion, she died a natural or an unnatural death, assuming that her testimony was as to symptoms true, state whether or not she died from natural or unnatural cause." To which question the witness answered: "I should think it somewhat unnatural." Said witness further testified: "I know of no other unnatural cause of death in which the symptoms harmonize as well as those described by Mrs. Bills than cyanide of potassium. I am of the opinion that was probably the cause of her death, assuming that these facts as to symptoms are correctly stated and are true. I would expect that it was cyanide poisoning. Taking the symptoms that I find in Mrs. Bills' testimony, and assuming that they are true, in my judgment the cause of Mrs. Davis' death was cyanide of potassium poisoning." To this testimony appellant objected, because the opinion of said witness was predicated upon the testimony of the witness Mrs. J. A. Bills alone, and it was affirmatively shown that Dr. W. P. Dingle was present at the time of the death of Olga Davis, or immediately thereafter, and that said Dr. Dingle testified to certain symptoms and conditions of the said Olga Davis, and of her appearance and the expression of her eyes, and the color of her skin, at the instance and request of the state, and other witnesses testified to being present at or about the time of the death of the said Mrs. Olga Davis, and, before the said witness could be required to give his testimony to the cause of the death of the said Olga Davis, it was required of the state to show that said witness had heard all of the testimony in reference to the manner of the death of the said Olga Davis, and, if the said witness could be permitted to state his opinion as to the cause of the death of the said Olga Davis, he could only give his opinion after hearing all of the testimony in reference to the cause of her death. Appellant further objects on the ground that it was not permissible for the state to introduce the opinion of...