
    ORNER v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 31, 1912.)
    1. Homicide (§ 313) — 'Vebdict—Degbee or Mubdeb.
    Under Pen. Code 1895, art. 712 (Pen. Code 1911, art. 1142), requiring the jury, finding one guilty of murder, to find whether it is murder in the first or second degree, a verdict, finding accused, indicted for murder, guilty as charged in the indictment, is fatally defective.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 671-676; Dee. Dig. § 313.]
    2. Homicide (§ 169) — Evidence — Circumstances Preceding Act.
    Evidence that accused, on trial for murder by poison, was, prior to the homicide, in a saloon drinliing with a third person, and was assisted home in a drunken condition, was inadmissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. § 169.]
    3. Criminal-Daw (§§ 448, 366) — Homicide (§ 203) — Evidence—Opinion—Res Gestae —Dying Declaration.
    Where, on a trial for murder by poison, the theory of the state was that arsenic was administered through coffee given decedent, a child, at the dinner hour, and the evidence showed that after dinner the child went out in the street and played awhile, and came back and complained of being sick, and that at about 2 o’clock the child sat in a window apparently well, a statement of the child to a third person, about 4 o’clock, that she would be all right if accused had not given her something in the coffee was inadmissible, being a mere opinion of the child, and not res gestae or a dying declaration.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. §§ 448, 366; Homicide, Cent. Dig. §§ 430-437; Dec. Dig. § 203.]
    4. Homicide (§ 169) — Evidence—Admissibility.
    On the trial of a mother for murder of her child by poison, evidence that the last time the child was at the home of a third person, playing with children, she began to cry was inadmissible, in the absence of anything connecting accused, not present, with the crying.
    [Ed. Note. — For other cases, see Homicide, Dec. Dig. § 169.]
    5. Homicide (§ 173) —Evidence — Admissibility.
    On a trial for murder by poison, the testimony of the foreman of the grand jury that he heard the evidence read before the grand jury, and was unable to ascertain any manner in which the poison -was administered, was inadmissible, in the absence of anything to show that the grand jury had failed to properly charge the name of decedent, or had not used diligence to ascertain facts to properly allege a case in the indictment.
    [Ed. Note. — For other cases, see Homicide, Dec. Dig. § 173.]
    6. Homicide (§ 174) — Evidence—Admissibility.
    Where, on a trial for murder by poison, .accused showed that towels were used in absorbing the blood that was vomited by decedent during her fatal illness, and the evidence did not show that she, while at her home, had attempted to secrete anything, evidence that the towels disappeared or were washed was inadmissible, unless accused was connected therewith.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 359-371; Dee. Dig. § 174.]
    7. Criminal Law (§ 783%) — Evidence—Instructions.
    W’here improper evidence is admitted, the court, at the request of accused, must charge the jury to disregard it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1879; Dec. Dig. § 783%.]
    8. Homicide (•§ 293) — Evidence — Instructions.
    Where, on a trial for the murder of a child by arsenic poisoning, the evidence showed that arsenic was found in cheap candy, and that the child had eaten candy just before she was taken sick, and that she had been sick more or less for some time, as evidenced by vomiting and complaints, and the theory of the state was that accused placed arsenic in coffee given to the child, the refusal to charge the theory of the defense of the possibility of the poison having been received accidentally was reversible error, under the rule that every phase of the law beneficial to accused must be properly charged.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 604; Dec. Dig. § 293.]
    9. Criminal Law (§ 778) — Instructions— Necessity — Burden oe Proof.
    AVhere accused, on trial for murder by arsenic poisoning, showed that decedent might have been poisoned accidentally by eating food containing poison, the refusal to charge that the burden was on the state to show the guilt of accused was erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1857; Dec. Dig. § 778.]
    Appeal from District Court, El Paso County; James R. Harper, Judge.
    Agnes Orner was convicted of murder in the first degree, and she appeals.
    Reversed and remanded.
    R. L. Nichols and Chas. Owen, for appellant. Joseph M. Nealon, Dist. Atty., and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic ana section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of murder in the first degree; her punishment being assessed at life imprisonment.

The indictment contains six counts, charging murder by poison. These counts are placed in the indictment to meet any possible phase of testimony that might be developed upon the trial. The case is one of circumstantial evidence. A brief summary of the facts will be stated later in the opinion.

1. The verdict of the jury is in the following language: “We, the jury in the above-entitled cause No. 5516, find the defendant guilty as charged in the indictment, and assess her punishment to penitentiary for life, this May 27, 1911. E. L. De Shazo, Foreman.” This verdict was assailed in the trial court as being not in compliance with the law, in that it did not specify the degree of murder of which appellant was convicted. This should have been sustained. Article 712 of the Revised Statutes of 1895 (Penal Code) article 1142 of the Revised Criminal Statutes (Penal Code) reads as follows: “If the jury shall find any person guilty of murder they shall also find by their verdict whether it is of the first or the second degree, and if any person shall plead guilty to an indictment for murder, a jury shall be summoned to find of what degree of murder he is guilty and in either ease they shall also find the punishment.” The cases have reviewed and construed this statute throughout the history of the Supreme Court and of this court, and have held that the verdict of conviction under this statute must specify the degree of murder of which the jury finds the party guilty. Buster v. State, 42 Tes. 315; Johnson v. State, 30 Tex. App. 419, 17 S. W. 1070, 28 Am. St. Rep. 930; Blocker v. State, 27 Tex. App. 16, 10 S. W. 439; Giles v. State, 23 Tex. App. 281, 4 S. W. 886; Brooks v. State, 42 Tex. Cr. R. 347, 60 S. W. 53; Zwicker v. State, 27 Tex. App. 539, 11 S. W. 633; Colbath v. State, 2 Tex. App. 391; Taylor v. State, 3 Tex. App. 387; Krebs v. State, 3 Tex. App. 348; McCloud v. State, 37 Tex. Cr. R. 237, 39 S. W. 104; Armstead v. State, 22 Tex. App 59, 2 S. W. 627; Wooldridge v. State, 13 Tex. App. 455, 44 Am. Rep. 708; Harbolt v. State, 40 S. W. 983; Sanders v. State, 18 Tex. App. 372; Dubose v. State, 13 Tex. App. 424; Brown v. State, 3 Tex. App. 315; Lyles v. State, 48 Tex. Cr. R. 119, 86 S. W. 763; Thomas v. State, 43 Tex. Cr. R. 23, 62 S. W. 919, 96 Am. St. Rep. 834; Id., 138 S. W. 1019.

It is unnecessary to cite further authorities to show the ruling of the trial court was erroneous. Why cases should be permitted to come to this court with the verdict in the condition this is, in view of the plain provisions of the statute and long line of decisions, is not readily comprehended. The district attorney has filed a brief, in which he insists upon this court ignoring the statute and overruling the cases. This court is not authorized to vacate statutes or set them aside. The Legislature has provided that the jury shall specify the degree of murder of which the accused is convicted. This they had authority to do, and this court has no authority to set it aside. There is no constitutional question involved in the construction of this statute, and no attack is made upon the statute that it is unconstitutional. It would be better in the administration of criminal law if matters of this sort were looked after in the trial courts, instead of asking this court on appeal to set aside or disregard legislative enactments, unless the contention be the statute is violative of some provisions of the Constitution. We would suppose that the district attorney by his brief is of the impression that this is a technicality. It may have been unwise for the Legislature to provide as they did provide in the statute quoted; but with that we have no concern. Instead of disregarding the statutes in the trial courts, they should closely adhere to them in the enforcement of criminal law. This appeal was unnecessary, and with a little care and caution this verdict could have been avoided as it is written. This •verdict was read in the presence of the court when returned into court by the jury, and this defect was then discoverable, and, had the jury been sent out to correct this verdict in accordance with the statute, this question would not have been suggested to this court for revision.

-2. The witness Lee, main state’s witness, over objection of appellant, was permitted to testify that on the night before the death of Lillie Orner defendant was at the Toltec saloon drinking with Mrs. Evans; that he assisted her home; and that she was drunk. Various objections are urged to this testimony. This was inadmissible. It was not an issue in the case as to whether she was drunk or not. Her character was not placed in issue, and this was in no way connected with this transaction.

Mrs. Evans was permitted to testify, over appellant’s objection, that some time in the evening, after 1 o’clock of the day on which Lillie Orner died, deceased said to her “I would be all right if Mamma had not given me that in the coffee.” The objection was that the testimony was too remote in point of time to be a part of the res gestse, and was not shown to be a dying declaration of deceased, defendant was not present when said statement was made, and that it in no way connects the defendant with the commission of the alleged crime, and is immaterial and irrelevant to any issue in the case. We are of opinion this objection should have been sustained. It was in part the opinion' of the declarant, made some hours after the supposed administration of the poison, if any was administered, in the absence of defendant, and after various things had occurred, and was not the acts speaking through the witness, but the witness giving her conclusion and statement of why she was sick. While the bill is a little indefinite, it is discussed in view of another trial. The facts will show in this connection that the state’s theory was that arsenic was administered through coffee given the child at the dinner hour, about 12' or 12:30 o’clock. It is shown that after dinner the child went out in the street and played awhile, and came back, complaining of being sick at the stomach. It is shown that at 2 o’clock she was sitting in the window apparently well. This was through the witness Deloach. That subsequently, after about 4 o’clock, Mrs. Evans was at the residence of appellant to do some sewing, and was talking to the child, and during the conversation this remark was. made. All continuity between the act and the statement of the child was broken by many incidents and occurrences. It was but the opinion of the child, and this without stating what it was, if anything, that was placed in the coffee. Under the peculiar facts, we are of opinion this could not be treated as res gestse, and was clearly not a dying declaration. There was nothing to show or attempted to be shown that the child believed she was going to die. The same may be said in regard to another bill in regard to the same subject-matter.

3. Another bill recites that while one Garcia was testifying for the state, oyer appellant’s objection, he was permitted to testify that the last time the deceased, Lillie Orner, was at his house she was playing with the children and began to cry. Numerous objections were urged to the introduction of this evidence. This was inadmissible. It had not been undertaken to connect defendant with the crying. It was a matter between third parties; defendant was not present; it occurred at one Garcia’s house while the child was playing with his children, where she had taken supper. The bill is rather indefinite; but we mention this in view of another trial.

4. Another bill of exceptions recites that Happer was permitted to testify that he was foreman of the grand jury which returned the indictment in this ease, and that he heard the evidence read before the grand jury, and that he was unable to ascertain any manner in which the poison was administered, and that there was no evidence before the grand jury as to the manner in which the poison was administered to the deceased, Lillie Orner. Objections were urged to this. This is not brought within any rule that has been decided by this court of which we are aware. This character of testimony is sometimes admissible when the grand jury has failed to Iiroperly charge the name of the injured party, or matters of that sort, or where the party is known as well by one name as another, or where the grand jury had used diligence, or had not used diligence, to ascertain the facts, in order to properly allege a case in the indictment. Nothing of that sort arose in this case, and this testimony was therefore inadmissible.

5. The state’s witnesses White and Stansel were permitted to testify that from about 4 to 6 o’clock on the afternoon of the funeral, and after the arrest of appellant, and when she was in jail, they searched the room, bedding, clothes, and other places in the house and saw no bloody towels. Various objections were urged to this. The poisoning, if it occurred, was on Saturday. Sunday an autopsy was made, and the contents of the stomach analyzed. On Monday the funeral occurred. At the time these officers investigated the house, the defendant was in jail. This was used, we suppose, as a criminative fact, conveying the idea, or seeking to convey, to the jury that the defendant had made away with the towels which the witnesses show, were bloody. Several witnesses testify to the fact that on Saturday evening, among others, the doctor and Mrs. Evans, perhaps another witness, were there and saw the bloody towels; that they were there, and the doctor looked at them, and the other witnesses also saw them. The fact that they may have disappeared, or been washed, or taken away while the defendant was in jail could not be used as a circumstance against her, unless she could be connected in some way with their disappearance. These towels, as shown by defendant in her testimony and- by the other witnesses, were used in absorbing the blood that was vomited by the child during her sickness. This was not proper, and should not have been permitted to go to the jury under the circumstances of this case. There was no attempt on the part of appellant while she was at the house, as shown by the testimony of the witnesses, to secrete anything, and she could not be held responsible for what occurred while she was in jail, and, in order to connect her with it, it should have been shown, that she was instrumental in some way in hiding the tow'els, if they were in fact hidden.

6. The defendant not only objected to the statement of the child to Mrs. Evans, as heretofore discussed, but sought to eliminate it again by an instruction to the jury to the effect that they could not consider such statement against the defendant. This was declined. We are of opinion that this charge should have been given, inasmuch as the testimony had been permitted to go to the jury.

7. Exception was reserved to the charge of the court, because it failed to instruct the jury on all the law applicable to the case, and because it did not embrace every phase made by the evidence, in this: That there was evidence in favor of defendant tending to show that deceased had ample opportunity to receive and may have received poison from a variety of sources; and it was the theory of the defendant that there was evidence tending to show the possibility or probability of the poison having been received accidentally from food which contained arsenic poison, and from other sources and by other means, and said evidence was so pertinent and forcible that it might be reasonable to suppose that the jury might be influenced by it in arriving at their verdict, and the court should have so charged as to furnish them an appropriate rule of law on this phase of the testimony. We are of opinion that such a charge should have been given. The doctors testify that arsenic is found in cheap candy and in canned goods, and various other things that are in common use; and, among other things, it is shown the little girl had candy just before she was taken sick, and that she had been sick more or less for some time, which was evidenced by vomiting and complaints of her stomach, and that she had beSn kept at 'home and from school on account of it. Every phase of the law which is beneficial to an accused on his trial before a jury should be appropriately charged, and the attention of the jury called to it, so that they may pass upon the different phases of the evidence. The testimony, without going into details and setting it out, requires upon another trial that the court will so charge the jury as to remedy the defects pointed out in appellant’s exceptions in failing to charge with reference to testimony that was before the jury that the poison may have come from other sources than from the appellant.

8. Appellant requested an instruction submitting the provisions of the statute which provides that the burden of proof is on the state to show the guilt of the accused, and it does not devolve upon the defendant to show her innocence. This was refused by the court. Under the circumstances of this case, we believe this charge ought to have been given.

For the errors discussed, the judgment is reversed, and the cause is remanded.  