
    HEXT v. STATE.
    (No. 9009.)
    (Court of Criminal Appeals of Texas.
    April 15, 1925.)
    1. Criminal law <&wkey;479 — Knowledge obtained by physician from study of books on subject of strychnine poison held to qualify him as expert on that subject.
    Knowledge obtained by physician from study of books on effect of strychnine poison qualified him as an expert on that subject without personal experience.
    2. Witnesses &wkey;>380(5) — Witness surprising state’s counsel by Injurious testimony may be impeached by reproduction! of testimony given before grand jury.
    Witness, surprising state’s counsel by injurious testimony, may be impeached by reproduction of testimony given before grand jury, in view of Yernon’s Ann. Code Cr. Proc. 1916, art. 815.
    3. Witnesses <&wkey;32l — Mere failure of witness to give expected testimony does not authorize his impeachment.
    Mere failure of witness to give expected testimony does not authorize impeachment.
    4. Homicide &wkey;»l66('I I, 12) — That deceased, accused’s' father, carried life insurance and possessed estate held properly received, as suggesting probable motive for homicide.
    That deceased, accused’s father, carried life insurance and possessed estate was properly received as suggesting probable motive for homicide.
    5. Criminal law &wkey;>556 — Státfé held not bound by its evidence of accused’s declaration as to nonpurchase of strychnine poison.
    In prosecution- for murder of accused’s father by poison, state was not bound by its evidence of accused’s declaration made after arrest, as to his nonpurchase of strychnine poison, where such declaration was neither a confession nor an admission nor relied upon by state, and was inadmissible as against a proper objection, if interposed.
    6. Criminal law <&wkey;730(IO) — Remarks of county- attorney, based on- accused’s failure to testify, held reversible error.
    In prosecution for murder of defendant’s father by poisoning, remarks of county attorney that, if accused had not bought the poison, he would have said so, and introduced witnesses to prove he did not buy it, held reversible error under mandatory provisions of Yernon’s Ann. Code Cr. Proc. 1916, art. 790, prohibiting comment on accused’s failure to testify, notwithstanding court’s instruction to disregard, in view of assessed punishment of 50 years’ confinement in penitentiary.
    ^ — -ffnr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Dickens County ; J. H. Milam, Judge.
    Bob Hext was convicted of murder, and lie appeals.
    Reversed and remanded.
    W. D. Wilson, of Spur, and G. E. Hamilton, of Matador, for appellant.
    Tom Garrard, State’s Atty-., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is murder; punishment fixed at confinement in the penitentiary for a period of 50 years.

The state relied upon circumstantial evidence alone to support its theory that the appellant poisoned his father, Pete Hext. In substance, the evidence leading to that conclusion is this: Appellant had been an inmate of his father’s house, but had left it and gone to the home of a neighbor some two weeks antecedent to the death of Pete Hext. Within the interval he had returned to the hoihe of his father but one time, which embraced a few moments, 5 or 10, during the daytime on Saturday preceding the death on Sunday. Four or five days before his death the deceased had purchased from Dr. I-Iayney, who conducted a drug store, a mixture of medicine known as Adlerika, which had an agreeable taste and which was used in prescribed doses. During the morning of the day of his death the deceased was at the drug store mentioned, in which there was kept in stock upon the shelves strychnine in various forms, including tablets. While the deceased was at the drug store Dr. Hay-ney left on a professional call, and upon his return two or three hours later was called to the residence of the deceased, who was found in convulsions from strychnine poison. 'The bottle of Adlerika which had been opened and partly used was setting upon the landing of the stairway. The contents of the bottle was examined after the death of the deceased and found to contain strychnine in poisonous quantities. Upon the arrival of Dr. Hayney lie was informed by the deceased that he thought he had been poisoned, and that he had taken nothing except that which was obtained from Dr. Hayney.

The deceased died on Sunday, June lst.-There was evidence that on the 29th of May the appellant had purchased a bottle of powdered strychnine at a certain drug store in the town of Spur, which was Some miles distant from the home of the deceased. The criminating circumstances were called in question by the cross-examinations, and some of them by controverting testimony. Por example, there was testimony suggesting that the strychnine in the medicine was in tablets and not in powdered form; that the witness who testified that the appellant bought the strychnine was mistaken as to his identity; that the deceased, in complaining to the doctor, made no mention of the intense bitter taste of the medicine; that the appellant had no knowledge upontjie occasion that he went to the home of the deceased for a few moments on Saturday that his father was making use of medicine. The sheriff; testified that, after the arrest of the appellant, he declared that he had bought no strychnine and had not been to the drug store conducted by Slayton.

A motion to continue the case was made to secure the testimony of two witnesses who would combat the claim of the state that the appellant was present at the drug store of Slayton at the time it was claimed that the strychnine was purchased, and to show that at that time he was at a point many miles distant.

On account of the disposition of the appeal the complaint of the motion for a continuance will not be discussed.

The objection to the testimony of the physician touching the effect of strychnine poison upon the ground that in qualifying he revealed no personal experience is not tenable. It was competent that he qualify as an expert upon knowledge obtained from the study of, books upon the subject. In Rice v. State, 49 Tex. Cr. R. 569, 94 S. W. 1024, the very point was decided in a case of strychnine poisoning. The principle was affirmed in English v. State, 85 Tex. Cr. R. 450, 213 S. W. 632, and is recognized in Underhill’s Crim. Ev. (3d Ed.) § 189.

While the state’s witness Pete Hext was testifying, the court permitted state’s counsel to examine him with reference to testimony before the grand jury and to elicit the admission that he (the witness) had testified before the grand jury “that there was some trouble between the appellant and his father.” If the witness had surprised the state’s counsel by giving testimony injurious to the state’s case, it might have been competent to impeach him by the reproduction of his testimony 'given before the grand jury. See article 815, C. C. P.; also cases collated in 2 Vernon’s Tex. Crim. Stat. p. 763. The bill is not in, a condition which enables us to determine whether the procedure followed was authorized. The mere failure of the witness to give the expected testimony would not have authorized his impeachment.

In receiving the testimony to the effect that there was an insurance policy upon the life of the deceased and that he possessed an estate, the court committed no error. Appellant being his son and, under the statute, an heir of the deceased, the testimony suggested a probable motive for the homicide. See Underhill’s Crim. Ev. (3d Ed.) § 503; Johnson v. State, 48 Tex. Cr. R. 423, 88 S. W. 223.

In refusing to charge the jury that they must accept as true the declaration of the appellant that he had not purchased the strychnine, the court, in our opinion, was not in error. . The declaration introduced by the state was neither a confession nor an admission. It was not relied upon to prove the guilt of the appellant. In fact, he being under arrest, it would not háve been admissible at all had the appellant made proper objection to it. These facts do not bring into operation the principle announced in Slade’s Case, 29 Tex. App. 381, 16 S. W. 253, namely, that there the state relies upon a confession introduced by it which contains exculpatory declarations, these are to be taken as true unless disproved. The distinction is clearly announced and illustrated in Trevenio’s Case, 48 Tex. Cr. R. 207, 87 S. W. 1162.

It is made to appear in a bill of exceptions that the appellant did not testify as a witness in his own behalf; that in his argument before the jury the county attorney made these remarks:

“If the defendant had not bought the poison, he would have said so, and would have introduced witnesses to prove he did not buy the .poison.” •

The testimony from the state’s witnesses is affirmative and uncontradicted that at the time it is claimed the witness Slayton sold appellant the strychnine no persons were present save Slayton, Gibson, and the appellant. Slayton and Gibson were both used by the state, and testified on the particular point under discussion, and therefore all who could testify on the subject, save the appellant. The remark, “If the defendant had not bought the poison, he would have said so,” was under the facts before the court obviously a comment upon the failure of appellant to testify in his own behalf, and was violative of the statute which declares that the failure of the defendant to testify shall not ‘Tie alluded to or commented on by counsel in the cause.” Article 790, C. C. P. Obedience to the statute is imperative, and ' transgressions of its provisions have been uniformly held to demand a reversal. See cases collated in 2 Vernon’s Texas Crim. Stat. p. 716. The court in the present instance instructed the jury to disregard the remarks, but, in view of the verdict, it cannot be said that the effort of- the learned trial judge to obviate the injury resulting from the disobedience of the statutory command were successful. That the wrong was calculated to prejudice the cause of the accused is manifest; its effect is at best a subject of conjecture. The comment on the appellant’s failure to deny the vital criminat-ing item cannot be regarded in other light than an effort to induce the jury to do that which the statute inhibits; namely, to convict the accused because of his silence on the trial of his case, rather than upon the evidence adduced to prove his guilt. A new trial should have been granted.

The judgment is reversed and. the cause remanded.  