Rupe v. State

• Decision Date: 06 February 1901
• Citation: 61 S.W. 929
• Parties: RUPE v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

61 S.W. 929

RUPE v. STATE.¹

Court of Criminal Appeals of Texas.

February 6, 1901.

Appeal from district court, Dallas county, Charles F. Clint, Judge.

C. A. Rupe was convicted of murder, and he appeals. Affirmed.

E. B. Muse and Jos. E. Cockrell, for appellant. D. E. Simmons, Acting 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, and prosecutes this appeal.

The indictment contained five counts. The conviction, however, was applied to the fifth count, so it will only be necessary to notice the points arising under said count. The theory of the state, which was supported by evidence, was that appellant and one Bob Coleman, acting together, poisoned deceased, A. T. Randall, by giving him morphine and chloral (one or both) in beer, which caused his death, and that this was done for the purpose of committing a felony, to wit, theft from the person. This occurred at the appellant's saloon. The accomplice, Bob Coleman, was the main witness for the state. By his testimony the actual administration of the morphine and chloral was proven. Morphine was administered first, some time between 6 and 7 o'clock in the evening. About 8 o'clock chloral was procured at a drug store near by on two occasions,—120 grains each time. It is not clear whether the first chloral procured was given, as the testimony suggests it may have been all or partially spilled. A short while thereafter a like quantity was procured, and deceased appears to have drunk some of this in beer, and remarked it was too bitter and he could not drink it. Somewhere about 8 o'clock, or shortly afterwards, deceased appears to have been affected by the drugs administered. He was in a comatose condition, and appellant and Coleman put him out of the saloon, where he was shortly afterwards found dead. The testimony of the state also shows the administration of the drugs was for the purpose of stupefying and rendering deceased unconscious, so that the parties might steal money from him which he exhibited in the saloon. A post mortem of the body of deceased showed that about a half grain of morphine was discovered in the stomach. The expert could not state accurately how much had been taken in the stomach, as he could not tell how much had been absorbed. The testimony of this expert showed: That a lethal dose for an ordinary man was about two grains. That how much it would take to kill in particular cases would depend upon the constitution, habits, etc., of the person. That morphine was not necessarily poison, and need not necessarily produce death. That it depended upon the manner of its use and the quantity, as well as the habits of the individual and his condition. It had its effect in ordinary cases in 15 or 20 minutes, sometimes longer. No chloral was discovered, and no tests were made for the same. That chloral is also a hypnotic. He could not tell how much it would take to kill. In exceptional cases as much as 900 grains had been given without fatal results. The state also introduced other evidence tending to corroborate the accomplice as to some of his testimony,—among others, the testimony of Lillian Graves. As to her, some of the testimony suggested that she might have been an accomplice. In defense appellant insisted on the weakness of the state's case. It is particularly insisted that under the evidence chloral was the cause of the death, and that the testimony showed defendant was not present when the chloral was administered, and that he was in no wise responsible therefor. Defendant asked charges covering these phases of the case. He also urged that the testimony showed morphine and chloral were not necessarily poisons; that they were administered with no intent to take life, but merely for the purpose of stupefying or putting deceased to sleep so that they might take his money; and that, if appellant was responsible for the death at all, he was entitled to a charge on murder in the second degree; and he excepted to the refusal of the court to give such a charge. Enough of the facts have been stated to present and discuss the bills of exceptions reserved.

On the cross-examination of Bob Coleman, he was asked, if on the next day after the homicide, which occurred at night, he did not go to the Trinity river bottom, and on the evening of that day if he did not meet Sam Spears, and give Spears a silver dollar, and ask him to go to town and get him (Coleman) something to eat, and if Spears did not subsequently return to the bottom where Coleman was, and tell him that his brother, Jim Coleman, sent word for him to come to town. The witness at first denied this, but subsequently stated it was the second day after the killing of the deceased that he was in the bottom, and the occurrence inquired about happened. Appellant then proposed to introduce Sam Spears, and prove by him that it was on the next day after the homicide, or the next succeeding day after the homicide, that he met Bob Coleman in the Trinity bottom, and the events inquired about happened. In this connection it was further proposed to prove by one Lowe, who accompanied Sam Spears to the Trinity bottom, where said Spears met Bob Coleman, that it occurred on the day immediately succeeding the homicide. This testimony was refused to be admitted by the court, and appellant assigns this as error. Now, it will be noted that the witness Coleman did not deny going to the Trinity bottom, and what occurred between him and Spears. He merely denies that it occurred on the next day, and appellant proposed to contradict him as to time. We do not consider this matter material, so as to afford the basis of a contradiction. It was something that happened after the accomplishment of the conspiracy, and not before its consummation or during its accomplish ment. If the guilt of Coleman, the accomplice, was a disputed fact, and by his testimony he was endeavoring to lay the whole transaction on appellant, then his flight might become a very material circumstance. But here he admits his connection, and admits his flight and concealment in the Trinity bottom; and whether it was the next day or the day after, it occurs to us, is immaterial.

Appellant offered to prove by the witnesses Duncan, Pendleton, and Day that they were acquainted with deceased, and that he bore the reputation of a morphine eater. Duncan stated: That deceased had been a school-teacher near Meridian, and that deceased stayed at the hotel kept by witness for several days a short while before his death. During this period he observed the conduct of deceased, and that it was peculiar. That he appeared to be in stupor when in the house, and at times would sit around seemingly in a stupor. That he appeared to have no appetite, and that he had a peculiar expression out of his eyes, and that he was sullen and morose, and from his manner and conduct it was the opinion of the witness that Randall was addicted to the morphine habit. That he had observed during 30 years past other persons addicted to that habit, and he judged from the manner of deceased he was addicted to it. On cross-examination this witness indicated: That he had noticed three persons during 30 years, and one of them he saw for several years about once a month. Another one he saw in a store in the town where he went to trade. That the last two, he did not know whether they used morphine. Witness could not tell how morphine affected the appearance of a person,—whether it dilated or contracted the pupils of the eyes, and what effect it had upon the complexion or facial expression. He was simply judging from general appearances and stupor. That whisky produced the same stupor, as far as appearances, as morphine. That he did not know whether or not Randall had been drinking whisky. Did not know whether his condition was produced by whisky or morphine. By Pendleton he proposed to prove merely that the reputation of deceased in the community was that he was addicted to the habit of using morphine, or an opiate of some kind; that before appellant came to his house he was on a spree in town; that the conduct of deceased was peculiar, as he observed it, and that he appeared to have no appetite, and was of a sullen or morose disposition, stayed about the house nodding in the daytime, even when he arose in the morning, talked and muttered to himself, and at night would cry out in his sleep, and that his eyes had a peculiar look, and the school children complained about his peculiar muttering to himself and other unusual conduct; that he inquired in order to ascertain whether deceased was a morphine eater, and went to the doctor and asked him about it, and the doctor told him he did not sell him any and did not know of his using any; that he was a nervous and feeble man. This witness further stated he did not know the effects of morphine or opiates; that there were only three or four Americans in the community where deceased was teaching school at the time, and his reputation was confined to them. By the witness Day it was proposed to prove: That deceased was in his house for a day or two. That his conduct was very peculiar, and in the nighttime he acted like a crazy man. Waked witness after he had been asleep, raving and holloing. He might have been drunk. Witness could not say he had not been drinking, and that his acts would not be produced by drinking, but he acted differently from any other drunken man. None of these witnesses testify that they had ever seen or known of deceased using any opiates or morphine. As stated, the court refused to permit the introduction of this testimony, which appellant insists was admissible for the purpose of accounting for the morphine found in the stomach of deceased after death. In support of his contention appellant cites us to several authorities which authorize the introduction of the character of the deceased in certain ca...