Long v. State

• Decision Date: 24 June 1931
• Docket Number: No. 13992.,13992.
• Citation: 48 S.W.2d 632
• Parties: LONG v. STATE.
• Court: Texas Court of Criminal Appeals

48 S.W.2d 632

LONG v. STATE.

No. 13992.

Court of Criminal Appeals of Texas.

June 24, 1931.

Rehearing Granted March 30, 1932.

Appeal from Criminal District Court, Kleberg County; A. W. Cunningham, Judge.

Maude Long was convicted of murder, and she appeals.

Reversed and remanded.

Gus L. Kowalski, of Kingsville, and Heidingsfelder & Kahn and Henry E. Kahn, all of Houston, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

LATTIMORE, J.

Conviction for murder; punishment, twenty-five years in the penitentiary.

In this case it was the state's theory, based on circumstantial evidence, that appellant poisoned her husband by giving him strychnine. Deceased habitually used Sal Hepatica. He took a dose of this powdered medicine, became violently ill, and shortly died in convulsions. The bottle of Sal Hepatica from which the dose was taken, upon analysis, was found to contain strychnine, likewise the stomach of deceased. Deceased and appellant lived at Kingsville, Kleberg county, Tex. A clerk in a drug store at Corpus Christi, Tex., testified that shortly before the death of deceased he sold to appellant a bottle of strychnine, and that in his presence and at his request she wrote, in his register of poisons sold, her name, address, and the purpose for which she desired said poison. The witness produced the book, identified appellant and her writing, and same was introduced in evidence by the state. According to this witness she wrote in said register "Mrs. J. D. Moore—Midway Camp—Strychnine for dogs." The state also made proof that there was no Mrs. J. D. Moore registered as a guest at Midway Camp in Corpus Christi at said time.

Thereafter appellant took the stand as a witness in her own behalf and specifically denied being in said drug store and the purchase or use of strychnine, and also denied that she wrote anything on said poison register. Bill of exception No. 13 sets forth that on cross-examination, over objection of appellant, the court compelled her to write in the presence of the jury certain signatures, including Mrs. J. D. Moore, and the words "Middle of December," the objection to this being that same was compelling the defendant to give evidence against herself in violation of the Constitution and Bill of Rights (Const. art. 1, § 10).

With the utmost deference to the views of others, to the writer the principle involved and applicable is clear, and the rule obvious. As said in Gallaher v. State, 28 Tex. App. 247, 12 S. W. 1087, 1095, cited by appellant herein: "It was the privilege of the defendant to not give evidence against himself, but it was within his power, and was his right to waive such privilege, and, having done so, he cannot complain. * * * We have found no authority, and have been referred to none, which holds that a defendant may not voluntarily give evidence against himself, or may not accede to a proposal to give evidence against himself."

An ordinary witness has no right of option to choose whether he will become such, but may be forced on the stand by compulsory process, and hence in obedience to our law he may thereafter, in a proper case, decline to answer questions whose answers would tend to criminate him. The accused, on the other hand, knows, in advance of becoming a witness, that, if he take the stand, the state will seek to elicit from him every fact affecting his status as a witness and pertinent to his guilt in the particular case on trial. Prior to becoming a witness he is wholly immune from inquiry. The Constitution protects him. When he elects to waive its shelter he thereby abandons his right to refuse as a witness. He may not thereafter give answer only to such questions as those whose reply would favor himself, but must yield to all pertinent inquiry. His voluntary offer of personal testimony, deemed by him competent and material to the issues, amounts to a waiver on his part as to any relevant fact, because each relevant fact is and must be but a part of the whole case. Nor are we able to draw the fine distinction that the accused may give testimony with his lips or by gestures, and be cross-examined as to same, but that he may not be asked to give manual demonstration of matters material. The point here immediately at issue, that is, did she write, was affirmed by the clerk of the drug store mentioned, and was by appellant pointedly denied by her oral statement. Comparison of handwriting by the use of authentic signature is a form of testimony quite common in all jurisdictions. In this state, by the terms of article 731, C. C. P., such comparison is specifically authorized by the jury itself. Fry v. State, 86 Tex. Cr. R. 73, 215 S. W. 560; Cone v. State, 89 Tex. Cr. R. 587, 232 S. W. 816. We know of no rule of reason or law that would compel the state to rest upon its cross-examination of the verbal denial by the defendant, and which would refuse the state the right to have her give before the jury her undeniable signature which might then be used for purposes of comparison and the verification or destruction of her story. As said in Foster v. People, 18 Mich. 275: "The right to decline answering as to these minor facts, is merely accessory to the right to decline answering to the entire criminating charge, and can be of no manner of use when that is once admitted; and must be regarded as waived when the objection to answering to the complete offense is waived. The law does not endeavor to preserve any vain privileges; and such a privilege as would allow a witness to answer a principal criminating question, and refuse to answer as to its incidents, would be worse than vain; for, while it could not help the witness, it must inevitably injure the party, who is thus deprived of the power of cross-examination to test the credibility of a person who may, by avoiding it, indulge his vindictiveness or corrupt passions with impunity. * * * And the further consideration is also recognized, that a witness has no right, under pretence of a claim of privilege, to prejudice a party by a one-sided or garbled narrative."

In Connors v. People, 50 N. Y. 240, it is said: "The prohibition in the Constitution is against compelling an accused person to become a witness against himself. If he consents to become a witness in the case voluntarily, and without any compulsion, it would seem to follow that he occupies for the time being the position of a witness with all its rights and privileges, and subject to all its duties and obligations. If he gives evidence, which bears against himself, it results from his voluntary act of becoming a witness, and not from compulsion. His own act is the primary cause, and if that was voluntary, he has no reason to complain."

We further quote from State v. Wentworth, 65 Me. 234, 20 Am. Rep. 688: "He was not obliged to testify. He does testify. * * * He exonerates himself. He denies the commission of the offense charged. He is subject to cross-examination as the necessary result of his assuming the position of a witness. * * * If he discloses part, he must disclose the whole in relation to the subject matter about which he has answered in part. * * * Answering truly in part with answers exonerative, he cannot stop midway, but must proceed, though his further answers may be self-criminative. Answering falsely as to the subject matter, he is not to be exempt from cross-examination because his answers to such cross-examination would tend to show the falsity of those given on direct examination. If it were so, a preference would be accorded to falsehood rather than to truth."

From Serrato v. State, 74 Tex. Cr. R. 429, 171 S. W. 1133, 1142, we quote the following: "And when defendant takes the stand as a witness he is subject to the same rules as any other witness. He may be impeached, attacked, sustained, bolstered up, made to give evidence against himself, cross-examined as to new matter and treated in every respect as any other witness testifying in behalf of defendant; Hare v. State, 56 Tex. Cr. R. 6, 118 S. W. 544, 133 Am. St. Rep. 950; Mirando v. State [Tex. Cr. App.] 50 S. W. 714; Jackson v. State, 33 Tex. Cr. R. 287, 26 S. W. 194, 622, 47 Am. St. Rep. 30; Hutchins v. State, 33 Tex. Cr. R. 299, 26 S. W. 399; Huffman v. State, 28 Tex. App. 177, 12 S. W. 588; Brown v. State, 38 Tex. Cr. R. 598, 44 S. W. 176; Pyland v. State, 33 Tex. Cr. R. 382, 26 S. W. 621; Thomas v. State, 33 Tex. Cr. R. 615, 28 S. W. 534; Hargrove v. State, 33 Tex. Cr. R. 456, 26 S. W. 993; May v. State, 33 Tex. Cr. R. 74, 24 S. W. 910; Monticue v. State, 40 Tex. Cr. R. 531, 51 S. W. 236; Hamblin v. State, 41 Tex. Cr. R. 142, 50 S. W. 1019, 51 S. W. 1111; Alexander v. State, 40 Tex. Cr. R. 404, 49 S. W. 229, 50 S. W. 716; Brown v. State, 57 Tex. Cr. R. 269, 122 S. W. 566; McFadden v. State, 28 Tex. App. 245, 14 S. W. 128; Mendez v. State, 29 Tex. App. 608, 16 S. W. 766."

Considering the authorities cited by appellant on this point, we observe that Gallaher v. State, 28 Tex. App. 280, 12 S. W. 1087, says nothing pertinent. When, as revealed by the opinion in that case, the accused was asked to stand and put a hat on his head and handkerchief over his face in the courtroom so that he might be viewed thus garbed, the accused made no objection, but complied. We find some dicta expressions in the opinion which go no further than to observe that, if the accused had refused when requested, as above stated, a different question would be presented. In the above case the accused had not taken the witness stand. Martin v. State, 80 Tex. Cr. R. 275, 189 S. W. 262, is cited and has in the opinion some dicta expressions, the court having theretofore said that the bill of exception presenting the point was not sufficient. The part of said dicta relied on, especially as applicable here, as laying down a rule that writing done in the presence of the jury may not be used for purposes of comparison, was said without analysis or discussion of any authorities on...