
    MILLER v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 14, 1912.)
    1. Witnesses (§ 195)— Confidential Communications — Eeeect of Divorce.
    Confidential communications of a wife to . her husband cannot, after their divorce, be testified to by him for the state on a prosecution of her.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 743; Dec. Dig. § 195.)
    2. Criminal Eaw (§ 442) — Evidence—Letters.
    The genuineness of letters claimed to have been written by N. to defendant is not established so as to make their contents admissible against defendant by the mere statement of witness that 'they were signed by N.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1027; Dec. Dig. § 442.]
    .3. Criminal Law (§ 1169) — Admission of Evidence — Curing Error by Limiting ■ Consideration.
    Error in admission against defendant of the contents of letters without establishing their genuineness is not cured by the court restricting their consideration to the question of motive.
    , [Ed. -Note. — For other cases, see. Criminal. Law, Cent. Dig. §§ 3137-3143; Dec. Dig. § 1169.]
    4. Criminal Law (§ 369)— Evidence — Other Offenses.
    Evidence that another who died may have drunk thereof cannot be considered on the question of defendant having put poison in milk with intent to kill M.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    5. Criminal Law (§ 778) — Burden of Proof . —Instructions.
    Defendant’s requested instruction that the burden of proof is always on the state, and never shifts to defendant, shopld be given on a prosecution for mixing poison with a' drink with intent to kill, it being a very close question, at least, under the evidence, whether 'defendant had anything to do with the matter.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1857; Dec. .Dig. $ 778.] '
    
      ■6. Criminal Law (§ 369)—Evidence—Oth-er Offenses—Extraneous Matters.
    While it was permissible, on a prosecution for mixing poison with a drink with intent to kill M., to introduce defendant’s statement that on the day it was claimed the poison was mixed with the drink she was at M.’s house for the purpose of getting certain articles, this showing her opportunity to do the mixing, the •fact of an officer having subsequently gone to defendant’s house to search for such articles •and to arrest her for stealing them is an extraneous matter not admissible.
    [Ed. Note.—For other cases, Law, Cent. ’ Dig. §§ 822-824; 369.] see Criminal Dec. Dig. §
    Appeal from District Court, Swisher County; L. S. Kinder, Judge.
    Mary A. Miller was convicted of mixing poison with a drink with intent to kill, and appeals.
    Reversed and remanded,
    G. W. Smith, Randolph & Randolph, and L. W Dalton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
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   DAVIDSON, P. J.

The indictment •. contains three counts. The first charges appellant with mixing strychnine with milk with intent to kill John Miller. The second charges appellant by mixing said poison with milk did kill John Miller. The third charges appellant with mingling strychnine with a certain drink, to wit, milk with intent to injure and kill Wm. Miller. The court in his charge submitted only the third count.

1. The first six bills of exception relate to the introduction of evidence introduced by the state to show, first, the good reputation of Wm. Miller for truth and veracity; and, second, in regard to his good reputation as being a quiet, peaceable, law-abiding man. These bills are not in compliance with the rules, in that they are too general, and do not specify the particular portions of the testimony to which objections were urged. The objections are general. Inasmuch as the case will be reversed upon other questions, we call attention to this condition of the record, and will say upon another trial we are of opinion the evidence which was admitted to sustain the reputation of Miller in regard to his being a peaceable, law-abiding citizen under this record should not be admitted. We are of opinion that the court was right with reference to permitting the introduction of evidence in regard to his veracity. This is rather a close question, and, in fact, it may be very seriously questioned whether it should have been admitted, but, as we understand this record, there is no question in regard to the other phase of the testimony.

2. Another bill of exception was reserved to the introduction of quite a lot of testimony from the witness Miller, to which various objections were urged. Miller was the divorced husband of appellant at the time of the trial. He was permitted to testify to a great many things, among which were some confidential communications that occurred during their marital relations. We deem it unnecessary to enumerate them. The trial court will understand what they are, and he should not permit them to go before the jury. This character of evidence is prohibited, not only by public policy, but by the statute itself. Our authorities do not go to the extent of permitting the divorced husband or wife to be used as a witness against the other after their divorce as to matters of confidential communications. Confidential communications made between them during their marital relations are considered inviolable,’ and secrecy must be observed in regard to them. They cannot be used under any circumstances as testimony.

3. The state was permitted, through Miller, to show the contents of certain letters he says were written to his wife by a party named John Nolan. He says he found these letters, and testified to their contents. Various objections were urged to this testimony which should have been sustained. The' letters were not proven to have been written by Nolan otherwise than the fact that Miller said they were signed by Nolan, and, even if the letters themselves had been offered in evidence, there would necessarily have been required evidence to establish the genuineness of the letters before they could be used. See Ex parte Denning, 50 Tex. Cr. R. 629, 100 S. W. 401; Henry v. Vaughan, 46 Tex. Civ. App. 531, 103 S. W. 192.

The court charged the jury in reference to these letters, and in regard to certain interrogatories and answers in the divorce proceedings, that they could not be considered for any purpose except the letters, interrogatories, and answers which were permitted by the court as tending to show motive, if they did, and, if considered by the jury at all, they should only be considered for that purpose and no other. The fact that the court limited and restricted the use of the letters as evidence does not cure the error in admitting the contents. Where erroneous evidence is admitted, that error cannot be cured by a restriction to certain purposes in the charge.

4. It is further urged that error was committed by the court in failing to instruct the jury with reference to the effect of evidence introduced which tended to show that the child may have gotten some of the alleged poisonous mixture from the effect of which it died. We are led to believe that this evidence was admitted as part of the res gestae. Inasmuch as it was admitted it should have been limited, or the jury should have been informed in some way the office and mission of this testimony, it could not be used to show that appellant had placed the poison in the milk for the purpose of killing William Miller. The name of the child was John Miller. The evidence admitted, if of any cogency, was very weak and indirect, indicating that the child had gotten any of the alleged poisoned milk. The milk claimed to have been poisoned was old and “sour clabber.” Right by the bucket containing this alleged poisoned milk was another bucket containing sweet milk. It was not poisoned as shown by the facts. There is no direct evidence that the child was ever given any of the milk. The testimony of Mark Miller is to the effect that a cup was sitting on the table with some of the sour clabber in it. This was supposed to have been taken from the bucket containing the sour and poisoned milk, but there is no evidence that the child ever drank it. If this testimony is admissible at all, it is only so if the defendant could be connected in any way upon facts showing that she put the poison in the milk, and that the child drank some of it. At the time the milk was said to have been poisoned,-Mark Miller and his wife and their child, which subsequently died, were not at home, and were not expected home until the following Sunday. The mingling of the poison with the milk occurred on the previous Friday. The testimony having gone before the jury, that body should have been instructed that they could not use it as a fact upon which to base a conviction of appellant for intending to poison William Miller. The writer does not see how this testimony could be admissible under the circumstances of this case in a future trial of the case, inasmuch as the first two counts of indictment are eliminated.

5. Appellant wrote out special instructions to the effect that the burden of proof is always on the state, and never shifts to the defendant. The charge is not here quoted. This is the substance. The court refused this charge. In this character of case this charge should be given. It is a very close, if not more than a doubtful, case on the evidence that appellant had anything to do with the matter, or mingled the poison with milk as charged, and in this connection the writer desires to say he does not believe the state has introduced sufficient evidence to show that she did. Upon another trial this charge should be given.

6. Bill No. 7 was reserved to the admission of evidence of the sheriff substantially that he had a search warrant for some property taken from the house of William Miller. The object of this search warrant was to investigate to see if Mrs. Miller, the appellant, had taken the property. It was a razor and shaving mug. He had also in his possession another warrant for her arrest under a charge of having stolen the mug and razor. It is further shown in the bill that Mrs. Miller admitted going to the house and getting the mug and razor on the day it is claimed the poison was mingled with the milk. It is also shown that Mrs. Miller claimed the property right in the razor and shaving mug; her testimony showing that it belonged to her former husband. It is claimed by some of the testimony to meet this that she had given it to her then living husband, William Miller, and he had charged her with the theft of the property under these circumstances. It was not permissible to prove by the sheriff that he had gone there to and did arrest her for theft and search the premises for the alleged stolen property. This was subsequent to the time the poison was claimed to have been mingled with the milk, and could furnish no motive for the act of mingling the poison with the milk. It was an extraneous matter. It would be permissible to introduce her statement that she was at the house the day before for the purpose of getting this mug and razor. This would place her in position to be able to mingle the poison'with the milk, and her admission of her presence there to get the razor and mug would be admissible to show her opportunity to do what the state claimed she did. The other matters were not admissible, and should have been rejected.

For the errors pointed out, the judgment is reversed, and the cause is remanded.  