
    COOK v. STATE.
    (No. 6383.)
    (Court of Criminal Appeals of Texas.
    Nov. 16, 1921.
    Rehearing Denied Dec. 14, 1921.)
    1. Homicide @=215(4) — Decedent's statement that he had been given poison held not a mere opinion.
    Decedent’s statement when suffering, cramping, and having convulsions that what defendant had given him was poison held not a mere opinion.
    2. Criminal law @=451 (3)— Statement of defendant’s appearance held a shorthand rendering of the facts.
    Witness’ statement, when asked with reference to defendant’s conduct and appearance while deceased, her husband, was suffering and claiming to be dying from poison, that she did npt cry or take on or anything, is admissible as a shorthand rendering of the facts, and not open to the objection of being an opinion and conclusion.
    3. Witnesses @=3287(4) — Testimony on redirect held proper to remove any prejudice from testimony elicited from witness on cross-exam i natío n.
    Witness for the state, from whom it was elicited on his cross-examination that after death of deceased, his brother, he got $60 from the government, was properly permitted, on redirect, for purpose of removing any embarrassment or prejudice from such testimony and to show the fairness of his purpose in getting the money, to state that he paid the funeral and burial expenses of deceased.
    4. Homicide @=338 (I)— Showing expenses of funeral were paid by deceased’s brother not prejudicial to defendant, deceased’s wife.
    It was not prejudicial to defendant in a prosecution for killing her husband to show that deceased’s brother paid his funeral and burial expenses.
    5. Criminal law @=850 — That another than regular officer for a moment had charge of jury not error.
    That for a moment the sheriff of another county, in the absence of the regular officer, had charge of the jury, was not reversible error; it being shown that he neither mingled nor talked with them.
    6. Criminal law @=404(3) — Identification of poison bottle held sufficient for admission of evidence.
    Testimony that a bottle found near deceased’s residence was exactly like that in which was the poison sold by witness to defendant was sufficient identification for its admission; any lack of positiveness in identification going to weight, and not to admissibility, of evidence.
    7. Criminal law @=404(3) — Introduction of bottle claimed to have contained poison administered not objectionable.
    Introduction of bottle claimed to have contained poison sold to defendant and administered to deceased is not objectionable, within the rule sometimes used for excluding the bloody clothing of deceased.
    8. Criminal law @=1144(12) — Inference from bill of exceptions that witness saw neither defendant nor deceased on day of homicide.
    Bill of exceptions complaining of admission of testimony that witness did not see accused with her husband, deceased, in town on the day of the homicide, not showing that witness saw either of them then, it can only be inferred that he saw neither of them.
    9. Criminal law @=543(1) — Reproduction of testimony given on former trial permissible, witness being out of state.
    Testimony given on a former trial may be reproduced; witness having since left the state.
    10. Homicide @=250 — Evidence of guilt sufficient.
    Evidence of defendant having murdered her husband by administration of poison held sufficient to support conviction.
    On Motion for Rehearing.
    11. Criminal law @=1169(6) — Any error in admission of bottle harmless in view of sentence.
    Any error in admission of bottle claimed to have contained the poison administered is not ground for reversal, defendant having received the lowest punishment for murder, and that being the lowest degree of homicide where poison is used.
    Appeal from District Court, Fisher County; W. R. Chapman, Judge.
    Alice Cook was convicted of murder, and appeals.
    Affirmed.
    J. E. Robinson, of Anson, and Stinson, Coombes & Brooks, of Abilene, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Fisher county of murder, and her punishment fixed at five years in the penitentiary.

By her bill of exceptions No. 1 appellant com plains of the admission of the testimony of J. I. Cook, said complaint being as follows:

“Well, when she made this statement that she was sorry she gave him this and would never give him anything else, he looked up at her and said, he told her, ‘No,’ lie says, ‘Alice, you will never get a chance to give me anything else.’ He says: ‘You have given me poison. I am going to die.’ ”

The ground of objection was that it was a conclusion and opinion of deceased as to what appellant had given.him. We do not ‘think so. Deceased was then suffering, cramping, and having convulsions, and we find no valid ground for holding it a mere opinion for him to state that what appellant had given him was poison.

The same witness was asked with reference to the conduct of appellant while deceased was suffering and claiming to be dying from poison the following, appearing in bill of exceptions No. 2:

“Q. Just state to the jury her appearance as to whether or not she was crying or not crying or showed any signs of grief at all. A. She did not.
“Q. Did not what? A. Did not cry or take on or anything.”

The objection to this also was that it called for an opinion and conclusion. In Rogers v. State, 65 Tex. Cr. R. 105, 143 S. W. 633, we held almost identically the same language to be admissible as a shorthand rendering of the facts. A similar complaint in bill of exceptions No. 3 will not be further discussed, and also the same matter is presented in bill No. 10.

The same witness was allowed ' to state that he paid the funeral and burial expenses of deceased, which matter is complained of in bill of exceptions No. 4. As qualified, the bill shows that on cross-examination appellant’s counsel asked the witness if he did not get money from the government after his brother had died, to which witness answered that he did so get $60. Thereafter, on redirect examination, said witness was permitted to testify for the state that he paid said expenses above mentioned. We think it proper to permit a witness who may be embarrassed or prejudiced by having it shown that he collected or received money of the deceased after his death to show the fairness of his purpose in getting the same, and that he paid it out for the benefit of the deceased. We fail to see any prejudice possible to the cause of’ appellant from such evidence. It is neither unusual not unnatural for some male relative of one who has died to act in such manner, and that wholly without reflection upon the wife or daughter or other female relative of deceased. We find nothing in Lewis v. State, 48 Tex. Cr. R. 149, 86 S. W. 1027, or Jones v. State, 52 Tex. Cr. R. 206, 106 S. W. 126, cited by appellant, holding contrary to our views as here expressed.

By her fifth bill of exceptions appellant complains that an unauthorized person had charge of and was with the jury after they had been impaneled and while the trial was proceeding. The facts are fully stated in the bill and show that during an* intermission, no Fisher county officer being present, the trial court asked the sheriff of Kent county, who was in attendance on court as a witness for the state, but was not called to testify, if he would take charge of the jury in their retirement. Before the jury left the courtroom,' however, a deputy sheriff of Fisher county appeared and took charge of them, both he and the sheriff of Kent county going with the jury up to the jury room. Arriving at the door of said room, the Fisher county deputy discovered that he did not have a key with which to unlock the door of said jury room and left the jury standing there, and also left the sheriff of Kent county,- and went downstairs, got the key, returned, and unlocked the door. It is shown that the sheriff of Kent county was not left alone with the jury exceeding one minute, and it is further made to appear that he neither mingled with them nor talked with them during that time. Under these facts we think any presumption of injury to the accused ■ entirely negatived, and that the bill shows no reversible error.

The witness who sold a bottle of strychnine to appellant was permitted to testify that a bottle shown to her, and which had been found in the mouth of'a prairie dog hole near the place where deceased lived, was exactly like the bottle in which was the strychnine sold by her to appellant. Thereupon said bottle was offered in evidence by the state. Objection was made to it on the ground that it was not identified, and that it was prejudicial, etc. The fact that a witness cannot be positive in his identification goes to the weight, and not to the admissibility of the evidence. Tate v. State, 35 Tex. Cr. R. 234, 33 S. W. 121; Coffman v. State, 51 Tex. Cr. R. 486, 103 S. W. 1128; Buzan v. State, 59 Tex. Cr. R. 213, 128 S. W. 388. We see nothing in the introduction of a bottle containing poison which can be held to be objectionable by invoking the rule which in some cases has been used to exclude the bloody clothing of a deceased or the weapon with which the homicide was committed.

Bill of exceptions No. 8 complains of the fact that witnesb Tucker, who lived at the town of Girard on the day of the homicide, was permitted to say that he did not see the accused with her hiisband at Girard on said day. This bill does not show that the witness Tucker saw either one of said parties on said day, and we can only infer therefrom that he saw neither of them. No error appears.

By a lengthy bill of exceptions setting out the whole testimony of the witness complaint was made of the reproduction of the testimony of Mrs. Maud Cook, a witness who had testified in person at a former trial of this case. It was shown by evidence that Mrs. Cook had since removed to the state of Oklahoma and was making it her permanent home, and that she was not present. The court stenographer who took down her testimony at the former trial testified, as a predicate, that he took her testimony correctly, and that he wrote out his notes correctly, and that the transcript of such evidence, which was read to the jury, was a correct copy of said notes. These matters have been often before this court and settled contrary to appellant’s contention. The testimony of a witness may be reproduced who had confronted the defendant in a court of competent jurisdiction and had been examined and cross-examined or opportunity given therefor, who has since died or removed beyond the jurisdiction of the court.

In a vigorous motion for new trial the sufficiency of the evidence was assailed. We have given this matter careful attention, and regret our inability to agree with counsel in their earnest contention in this regard. While the evidence showing motive is very slight, we have often held it not necessary to show motive in a murder case. That deceased came to his death from strychnine poison was unquestioned. That appellant bought a bottle containing strychnine a few days before his death was equally unquestioned. She and her husband were occupying a dugout or storm cellar as their abode, the door of which was but a short distance from a house occupied by the family of a brother of deceased. According to the state’s testimony, on the evening or night of said occurrence, after appellant and deceased had retired to their home, appellant came back to the house and reported that deceased was ill and suffering with cramps. Ira Cook, the brother, and his wife went at once and found deceased stooping over, holding himself, and apparently suffering. Ira asked him what was the matter, and he said that appellant gave him poison, stating that she begged and begged him to take it, and he did it to please her. Several witnesses for the state testified to the conduct of appellant from that time until the death of her husband and afterward, and all seem to agree that she gave no evidence of emotion; did not cry or seem to be affected in any way. Ira Cook stated that while they were trying to do something for deceased he asked appellant to run to a neighbor’s and get some alum, but that she went away in a walk. A young lady who was at the home of said •neighbor testified that when appellant came for the alum they gave her a small quantity and she started back; that witness found some more and started running after ■appellant, overtook her, and was going to continue rapidly, but appellant told her it was no need to run; she might make herself -sick; there was no need to get scared in a case of that kind. On the second day after the death of deceased a bottle containing -strychnine was found in the mouth of a prairie dog hole near the residence. The track of a woman’s shoe was found in the -soft earth near the mouth of said dog hole, and one of appellant’s shoes was fitted into the track in the presence of witnesses. It was further shown by the woman who sold appellant the strychnine that she asked her what she was going to do with it, and appellant said she was buying it for a man ' who came out to the road as she was coming to town and asked her to get it for him. and that she was buying it for him and did not know what he wanted with it. Appellant testified that she did not tell this to said woman, but that she bought the stryeh-nine for her husband and gave it to' him. She said she had some quinine in a paper in her trunk, and that on the day before her husband died she got some capsules, and he and she together filled four of them with said quinine, and that on the night he died she took a capsule herself, and, as there was but one left, she gave it to her husband, but did not know whether he took it or not. She said she had not seen the strychnine bottle since she had bought it and brought it home and gave it to her husband. No complaint seems to be made by any exception to the charge of the court, and upon the issues of law and of fact fairly submitted the jury found appellant guilty and have seen fit to assess her punishment at the lowest term of years allowed by law. We cannot convince ourselves that their verdict is unsupported by the testimony.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

But two reasons are advanced for the granting of a rehearing. One relates to the admission in evidence of a bottle of strychnine similar to the one in which was strychnine purchased by appellant a very short time prior to the death of her husband. We cannot bring ourselves to believe that .material error, if any, was committed in admitting in evidence this bottle. The finding of said bottle in the unusual place where same was discovered, shortly after the alleged poisoning and near the home of appellant where the poison was taken, would have crimina-tive force. While the bottle itself was not that which killed, it was the container of the deadly agent and would be apparently admissible for as many reasons as would the pistol, in a proper case, with which deceased was shot. Sanchez v. State, 67 Tex. Cr. R. 453, 149 S. W. 124; Collins v. State, 77 Tex. Cr. R. 156, 178 S. W. 345; McBrayer v. State, 34 S. W. 114; Jackson v. State, 48 Tex. Cr. R. 650, 90 S. W. 34. See, also, Canons v. State, 59 Tex. Cr. R. 398, 128 S. W. 141. Appellant received the lowest punish ment for the crime of murder. It being alleged that the murder was committed by poisoning, she could have been convicted of no lower degree of homicide. We have held in a case where the accused received the lowest penalty that the exhibition in evidence even of the bloody garments of the deceased was not such error as would call for a reversal. Long v. State, 48 Tex. Cr. R. 179, 88 S. W. 203.

We have again reviewed the record in the light of the other complaint made by appellant, which is that the sheriff of a county other than that of the prosecution was asked to/take charge of the jury for a short time. The exhaustive brief in support of the motion cites many authorities which discuss the question of improper communication with a jury and the policy of the courts to decline to speculate as to the effect of such communication where the proof shows same to have taken place. We cannot see the relevancy of such authorities to the question involved. There was no communication between said sheriff and the jury during the short time he was in charge of them. The fact of communication was wholly negatived. We regret our inability to agree with the contentions, and the motion must be overruled.

The motion for rehearing is denied. 
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