Fults v. State

• Decision Date: 15 May 1918
• Docket Number: (No. 4852.)
• Citation: 204 S.W. 108
• Parties: FULTS v. STATE.
• Court: Texas Court of Criminal Appeals

204 S.W. 108

FULTS v. STATE.

(No. 4852.)

Court of Criminal Appeals of Texas.

May 15, 1918.

On Motion for Rehearing, June 19, 1918.

Appeal from District Court, Shelby County; Daniel Walker, Judge.

Arch Fults was convicted of murder, and he appeals. Affirmed.

D. M. Short & Sons, of Center, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of murder, his punishment being assessed at 20 years' confinement in the penitentiary.

The state's case is to the effect that appellant killed deceased by administering poison through a drink of whisky. Ill will and motive were shown growing out of a detail of facts we deem unnecessary to mention. There was a controversy about this in the testimony. Deceased died from the effects of strychnine poison.

The bills of exception sufficiently state the case relied upon by the state. There are seven bills reserved; six of these refer to the testimony of the particularly named witnesses, and the seventh is rather a general summary of the testimony shown by previous bills of exception. These bills show, in substance, that Mrs. Myrtie Fults testified that deceased came to where she and others were cleaning a pig and leaned over the fence, quite sick and suffering, and stated defendant had poisoned him; that appellant gave him one drink; attempting to take another drink, it was so bitter he spit it out, and told defendant that he had poisoned him; that defendant wanted him to drink more, but he declined. This witness also stated deceased offered to give a deed to his entire place to her or any one else to prosecute defendant because he had poisoned him.

Parrish, the father of Mrs. Fults, testified that deceased came to his house that night and died, and made the statement that he was a dead man if there was not some relief given him; that if the doctor could not do something for him, he was a dead man; that he wanted his wife to come and see how he had to die and suffer; that he wanted to talk to his children; that he had enough poison to kill ten men; that deceased knew all the parties at his house that night and called them by name; that Dr. Williams, John Hopkins, witness' wife, Bud Wilkerson, and himself were present when deceased died.

The state's witness Hopkins testified that deceased made a statement in the presence of witness and Dr. Williams that he was poisoned; that deceased had several convulsions before he died; that these convulsions would cause him to draw his arms and lower limbs back, and cause him to draw all over and to jerk, and when he had a convulsion he would ask those about him to hold him, and said he was going to die if there was not something done for him; that he wanted them to send for his wife and children.

Dr. Williams testified that deceased made the statement at the residence of J. F. Parrish, on the occasion of the witness having been called there to attend deceased, that deceased had told defendant after he had swallowed the whisky, and after he had taken two swallows and had spit out part of the last swallow, that he (defendant) had poisoned him with strychnine, and had insisted on deceased taking more of the whisky, and the defendant said it was not strychnine, but appellant refused to drink more of the whisky himself, and that defendant followed deceased some distance trying to induce him to drink more of the whisky, which he declined.

Mrs. Sarah L. Parrish testified that the deceased, Wilkerson, on the night of his death at her house, made the statement that he was poisoned; that defendant gave him two drinks of whisky; that he drank two drinks with defendant; that he spit out one and said to defendant, "You have poisoned me;" that defendant followed him down the road a piece; that the whisky tasted bitter, "and he ask us to give him grease, and if we knew any other remedy to give it to him; that he knew that it was strychnine, because it was so bitter; that he wanted water, but he would not drink, as he knew it was against strychnine."

Bud Wilkerson testified that deceased, a few minutes before he died, while lying on the bed at the residence of J. F. Parrish talking to witness, said, "I am gone Bud; there ain't no chance for me;" that defendant had given him whisky after he had turned off the road, some 300 yards from Mr. Parrish's home; that defendant did not drink with him and nobody else did; that as soon as he had taken the whisky inside he knew something was wrong, and he further said, "You can't do me any good on earth; I am gone; he has killed me; but I want you to push it in law. You can never do me any more good on earth."

There are other statements in preceding bills of exception which show some of these accusations of having been poisoned by defendant were made in defendant's presence and hearing. Objection urged to this testimony is that it was but the opinion of the deceased that it was poison the defendant gave him. The central point of objection was that this was but an opinion.

Appellant's counsel file a very strong and ably written brief presenting that view of the case, citing quite a number of well-considered opinions of courts of the different states. Some of these cases support his contention. There are many cases collated in 21 L. R. A. (N. S.) p. 840, in the editor's note under House v. State. The trend of the weight of the authorities seems to support the Rice Case in 49 Tex. Cr. R. 569, 94 S. W. 1024, and the same case in 54 Tex. Cr. R. 149, 112 S. W. 299. The writer did not agree with the majority opinion in the two Rice Cases above cited, but those opinions follow that line of cases which are adverse to the contention of appellant. The majority of this court think the opinions in the Rice Cases, supra, are correct and should be followed. In view of this fact, we hold that the court was not in error in following the ruling in those cases in the admission of this...