Rice v. State

• Decision Date: 11 April 1906
• Citation: 94 S.W. 1024
• Parties: RICE v. STATE.
• Court: Texas Court of Criminal Appeals

94 S.W. 1024

RICE v. STATE.

Court of Criminal Appeals of Texas.

April 11, 1906.

Appeal from District Court, Johnson County; O. L. Lockett, Judge.

D. R. Rice was convicted of murder in the first degree, and appeals. Reversed and remanded.

Odell, Phillips & Johnson, Ramsey & Odell, and E. A. Rice, for appellant. Wm. Poindexter, Mason Cleveland, Co. Atty., and Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life. The indictment charged appellant with the murder of his wife, on December 6, 1904, the allegation as to the cause of the death being the administration of strychnine from a fountain syringe into the rectum. Appellant and his family resided in Joshua (a little town in Johnson county), where appellant had a store. The state's testimony tends to show that appellant neglected his wife for other women, who lived in Ft. Worth. The first of these women he kept for a year and a half, and then began illicit relations with another, to wit, Nellie Long, whom he was keeping at the time of the death of his wife. It is shown that, on account of his attention to other women, a disagreement arose between his wife and himself, which began two or three years before her death and continued until her death. It was shown that his wife was in the habit of using a fountain syringe almost every morning on account of constipation. Appellant knew this, and the state's testimony tends to show that he took advantage of this knowledge and placed strychnine in the syringe on the morning of the death of his wife, and that she used said syringe, and shortly after the administration of the same she was seized with cramps. Alarm was given, and the neighbors gathered in. From the time she was so seized she lived about an hour, and during this period she made various statements in the presence of her husband and neighbors relative to the cause of her death, accusing her husband of being the author thereof. The state introduced other circumstances, and among other things, that appellant endeavored to get Nellie Long, a short time previous to the death of his wife, to send her strychnine poison in some pretended headache compound for her use. The state's evidence showed that strychnine poison administered into the rectum of deceased was the cause of the death. Appellant depended on the weakness of the state's case with reference to his wife being poisoned; and conceding that she was poisoned, he insisted that the proof failed to show that he was instrumental in administering the same. This is a sufficient statement of the case to present the legal questions.

Appellant's assignment of error Nos. 1 and 2 predicated on several bills of exception relate to the action of the court in taking up the case for trial at that time, appellant claiming that he was in custody at the time the indictment was found, and was entitled to service of a copy thereof, and then entitled to two full days in order to prepare for trial, which had never been accorded to him. The bills show that after the indictment was returned against appellant, on January 13, 1905, he was arrested on a capias, and lodged in jail. It is shown that on the 14th day of said month defendant entered into a recognizance for his personal appearance before the court, and was enlarged on the same day; that on the 8th of February, the case was set down for trial, and on that day a continuance was granted to appellant on his written application; that at the next term of the court, to wit, June term, 1905, the case was set down for trial on the 21st of said month; that on that day the state announced "not ready," and the case was postponed until the 28th of June, following; on that day defendant was served with a copy of the indictment, after said motion was presented, and afterwards on the 1st of July, 1905, defendant was arraigned in open court, and pleaded not guilty; that the intervening time between the 28th of June and the 1st of July, was consumed in hearing the motion for change of venue, and other preliminary motions, and in selecting a jury in the case. Appellant was entitled to a service of the copy of the indictment and two days' time claimed by him, unless, by the course he pursued, he waived the same. Articles 540, 542, and 568, White's Ann. Code Cr. Proc. 1895, have been construed by this court in a number of cases. Evans v. State, 36 Tex. Cr. R. 32, 35 S. W. 169; Holden v. State, 71 S. W. 600, 6 Tex. Ct. Rep. 483; Scoville v. State, 77 S. W. 792, 8 Tex. Ct. Rep. 884; Brewin v. State, 85 S. W. 1140, 12 Tex. Ct. Rep. 663. These and other cases appear to regard the statute as mandatory; that is, where an accused is in custody or in jail at the time of his indictment, he is entitled to service of a copy of the indictment, and to two entire days thereafter before he can be brought to trial. Evans v. State, supra. It was held in Brewin's Case, supra, that the fact appellant was subsequently enlarged on bond and during the term of the court procured a postponement of the trial of the case, this afforded no reason why she should be denied a service of the copy of the indictment, and her two days to prepare for trial. The court say in that case: That it seems the party was granted bail and was enlarged for a short time after her arrest, that the length of time the accused may be on bail is not a criterion, nor does it constitute a waiver. As stated, the case in effect holds, that the postponement will not constitute a waiver. Here, however, appellant procured a continuance of the case from one term to another. At the preceding term he did not claim his two days, or ask that he be served with a copy of the indictment, before taking up his motions, preparatory for the trial. Nor did he claim this until the subsequent term of the court, when he was required to announce at that term whether or not he was ready for trial. He then for the first time claimed his two days. It occurs to us that, under these circumstances, appellant waived his right to service of a copy of the indictment, and his two days to get ready to prepare for trial. In preparing his application for continuance at the February term, it is shown that defendant knew of the constituents of the charge against him, to wit, the murder of his wife by poisoning. It is further shown that he had full knowledge of the contents of the indictment; and the proof that would be made against him. Before this procedure, at the February term, he had been on bail for some time. We hold that, when the case was called for trial at that term, and he then failed to ask for service of the copy of the indictment, and for two days time thereafter in order to prepare for trial, and his meeting the case at that time with a motion for continuance was tantamount to a waiver of the service of the indictment.

Appellant reserved an exception to matters involving the service of the writ containing the special venire. The matter came up in this way: Appellant was served with the return of the sheriff; said return showed the full 250 names that had been drawn on the special venire, and the beginning contained this clause: "Summoned by the sheriff of Johnson county to serve as special veniremen." Opposite 42 of said names was marked "Not found." Also at the conclusion of said writ, the clerk certified that the "foregoing list of jurors is a true and correct copy of the names of the jurors summoned by the sheriff of Johnson county to serve as special jurors for the trial of said cause." On objection to said writ, the court ordered the return to be amended. The sheriff amended his return, and showed that he had served only 208 of said jurors, and went on to show that 42 were not summoned, assigning the reasons therefor. After service of said amended writ, appellant claimed a day before he could be brought to trial. This the court refused, and he took a bill of exceptions. It occurs to us that there was no error in this action of the court. The first return really showed what had been done, and unquestionably appellant understood this. No motion was made to quash, and if one had been made it could not have been sustained, but the return would have been amended under the direction of the court. The amended return only showed more definitely what had been done, and was not equivalent to the service of a new return. We do not believe there was any error in this action. See article 654, White's Ann. Code Cr. Proc.; Williams v. State, 29 Tex. App. 89, 14 S. W. 388; Wiggins v. State, 84 S. W. 821, 12 Tex. Ct. Rep. 195.

Following appellant's brief in discussing the assignments of error, we come to his fourth assignment, which embraces the thirteenth, fourteenth, sixteenth, and seventeenth grounds of the motion for new trial, and relates to the admission by the court of the testimony of the witnesses Mrs. Annie Foster, Mrs. Dr. Pickett, Mrs. Valentine, and Mrs. C. E. McPherson. The following proceedings were had with reference to witness Mrs. Foster. "Q. What, if anything, did Mrs. Rice say with reference to whether she was going to live or die? A. She said, `I am going to die, I want my children.' Q. What was the first thing Mrs. Rice said to defendant? A. She said, `Go away, Ward.' Q. What did she say with reference to the cause of her suffering? A. She said, she had used the syringe. Q. Was Mr. Rice present then? A. I think so. She said she had used the syringe, and she had gone to the closet, and that she cramped, and she thought she could hardly walk back, and when she came back she lay on the bed thinking she would get better. She did not, and she got up, and called for help. Q. What, if anything, did she say to defendant, or in his presence there about being poisoned? What else did she say, if anything just what you heard? A. When I came back in the room at one time I went to her, and put a cloth on her, and she said,...