
    HARKEY v. STATE.
    (No. 6358.)
    (Court of Criminal Appeals of Texas.
    Oct. 5, 1921.
    Rehearing Denied Nov. 2, 1921.)
    1. Poisons <8=7 — One placing strychnine in coffee grounds guilty of mingling noxious substance with “food.”
    Where defendant placed strychnine in a coffee pot containing coffee grounds with intent to injure the person who would drink the second making of coffee from such grounds, he was guilty of the offense defined by Vernon’s Ann. Pen. Code 1916, art. 1077; any article used as food or drink by man, whether simple, mixed, or compound, including food adjuncts, such as condiments, spices, etc., being “food,” and article 699 defining food as used in the pure food laws, as including all articles used for food, drink, confectionery, or condiments by man.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Food.]
    2. Criminal law <8=517(1) — Confession must be voluntary.
    A confession is not evidence, unless voluntary.
    3. Criminal law <8=736(2) — Whether confession is voluntary a jury question, where evidence is in conflict.
    Where defendant claimed that his alleged confession was not voluntary, and the evidence was in conflict the question was for the jury, and all that defendant can demand is that the jury be called on to determine whether the confession was voluntary, and to reject it if they did not believe it to be so.
    4. Criminal law <8=736(2) — Whether confession was voluntary held for the jury.
    Where defendant claimed that his alleged confession was induced by promise made by a minister to help him in court, and that the minister would intercede in trying to get defendant’s wife to return to him, held, that the voluntary character of the confession was properly submitted to the jury.
    5. Criminal law <®=>535 (Vá) — Confession may be used to prove corpus delicti.
    While the corpus delicti may not be proved by extrajudicial confession alone, such confession may be used to aid in proof.
    6. Criminal lav/ <@=3535(2) — Evidence held to establish corpus delicti independent of confession.
    In a prosecution for placing strychnine in coffee grounds, evidence held to warrant the conclusion that the poison was mixed with the coffee grounds with criminal intent, thus satisfying the law demanding proof of the corpus de-licti, independent of defendant’s confession.
    7. Criminal law <@=>517(2) — Defendant may be identified by his confession.
    The defendant’s confession was available to identify him as the criminal agent in a prosecution for placing strychnine in coffee grounds.
    8. Criminal law <@=>595(7) — Continuance for absent witnesses held properly refused.
    A continuance because of the absence of physicians, who would testify that in 1918 defendant was mentally incapable of making a confession held properly refused, where the confession proved was made in 1919, and no continuance of the mental disorder, or its existence subsequent to 1918, nor that it prevailed at the time the confession was made, was shown.
    On Motion for Rehearing.
    9. Poisons <®=>7— Intent held gravamen of offense.
    The gravamen of the offense of mingling noxious substances with food, drink, or medicine, with intent to kill or injure another person, defined by Vernon’s Ann. Pen. Code 1916, art. 1077, is the intent, and unless there is some substantial doubt as to whether the article with which the poison was mingled be food, drink, or medicine, the question of its character is of no great weight.
    10. Poisons <@=>7 — “Food” defined.
    “Food,” as used in Vernon’s Ann. Pen. Code 1916, art. 1077, is not restricted to articles in a then condition for immediate human consumption without further process.
    11. Poisons <@=>9 — Intent held a jury question.
    Where defendant, accused of placing strychnine in coffee grounds with intent to injure others, claimed that he changed his mind, and was prevented from taking the poison out of the coffee pot by the same having been discovered by another person, the question of his intent was for the jury.
    12.Poisons <@=>7 — That one who placed stryoh-nine in coffee grounds later attempted to remove poison not a defense.
    Where defendant placed strychnine in coffee grounds with the intent to injure another, the fact that he later recanted and attempted to remove the poison, but was prevented by the fact that it had been discovered and removed by some one else, and that the intended crime was not consummated, was not a defense; Vernon’s Ann. Pen. Code 1916, art. 1077, defining such offense, having no qualifying clause.
    Appeal from District Court, McCulloch County; J. O. Woodward, Judge.'
    A. M. Harkey was convicted of putting strychnine in a coffee pot containing coffee grounds, with the intent to injure another, and appeals.
    Affirmed.
    Mack & Elack, of Menard, and J. E. Shropshire and Sam McCollum, both of Brady, for appellant
    R. H. Hamilton, Asst. Atty. Gen., for the State. '
   MORROW, P. J.

Appellant is convicted of a felony; his punishment fixed at confinement in the penitentiary for a period of six years. The offense is defined in article 1077 of the Penal Code thus:

“If any person shall mingle or cause to be mingled any other noxious potion or substance with any drink, food or medicine, with intent to kill or injure any other person, * * * he shall be punished,” etc.

The act relied on is that appellant put strychnine in a coffee pot containing coffee grounds with the intent to injure one Coal-son. The facts show that the appellant was the husband of a daughter of J. N. Coalson, that with his wife and baby he resided at the home of J. N. Coalson and wife, and that it was the custom of all members of the family to drink coffee at breakfast, but that at the noon meal J. N. Coalson alone had the habit of doing so. On the morning of the offense, breakfast was prepared by the wife of J. N. Coalson, coffee was made, and several members of the family partook of it, all of the fluid being drained out of the pot, and the grounds left therein, pursuant to a custom, known to the appellant, of using them in the preparation of coffee for the use of J. N. Coalson at the noon meal. Before the noon meal was prepared, the poison was placed in the form of powder or crystals in the coffee pot, and became mixed with the coffee grounds therein. While preparing the noon meal, Mrs. Coalson observed the substance, and by reason thereof did not use the grounds, nor the coffee pot, but prepared coffee in another vessel. The contents of the coffee pot was analyzed and found to contain strychnine in poisonous quantity.

Appellant confessed that he had put the poison into the coffee pot with the intent to kill J. N. Coalson. Appellant testified as a witness and admitted that he made the confession, but claimed that he did not speak the truth; that in fact, he did not commit the crime, but that he was induced, to make the confession toy his desire to be reunited with his wife and child, and his desire to relieve the anxiety of mind of J. N. Ooalson, who, at the time the confession was made, was in a-very low state of health, and was melancholy by reason of the occurrence and the fact that suspicion was directed against his wife. Evidence negativing an inducement or promise made to the appellant to secure the confession was introduced. Appellant also testified that after the poisoning act described, and before the noon hour, he recanted and sought to remove the poison; but its presence was discovered by Mrs. Ooalson while he was seeking an opportunity to carry his purpose into effect.

The theory is advanced that the verdict and judgment are unsupported, by the evidence, for the reason that the coffee grounds with which the poison was mingled was neither food nor drink.

“The coffee bean is generally used in the preparation of a table beverage called ‘coffee,’ made by using the parched and ground coffee beans in preparing an infusion with boiling water.” Century Dictionary.

The question whether the coffee grounds in question can be classified as food or drink, within the meaning of the statute, is vital. The courts have considered the meaning of these terms as used in pure food statutes and other police regulations. See Cyc. of Law & Proc. vol. 19, p. 1085; 2 Words and Phrases, Second Series, p. 591; Commonwealth v. Pflaum, 286 Pa. 294, 84 Atl. 842; Jewett v. Small, 20 S. D. 232, 105 N. W. 738; Armour v. State Dairy Commission, 159 Mich. 1, 123 N. W. 580, 25 L. R. A. (N. S.) 616. These decisions declare, in substance, that the term “food” includes every article used for food or drink by man.

“Any article used as food or drink by man, whether simple, mixed, or compound, including food adjuncts, such as condiments, spices,” etc. Webster’s New International Dictionary, 844.

In the instant case, the testimony is affirmative and undisputed that it was the custom in the Ooalson family to use the grounds left from breakfast in preparing coffee for the noon meal. Other testimony was introduced to the effect that there remains in coffee grounds, after once used, food value. The quantity of ground coffee compared with the water used would bear upon the strength of the grounds remaining. The custom of using the grounds a second time implies that they were adapted to the purpose. Oh the particular occasion, they were left in the coffee pot preliminary to their use in the preparation of the noon meal, pursuant to custom. Upon the facts before us, we think the substance in the coffee pot with which the poison was mixed was within the statute.

It is claimed that appellant’s confession was not voluntary and that it should have been excluded. In his testimony he claimed that it was false and was induced by the promises and conduct of Eev. Banks. Banks and appellant were members of the same church and the same lodge, and attended the church conference together. At the time a divorce proceeding was pending, and Mr. Ooalson was in a very low state of health. Appellant wanted the divorce suit abandoned, and his wife and baby restored to him, and a reconciliation with Mr. Ooalson, and confided his desires to Banks. Appellant also testified that his confession was induced by a desire to restore the health of Ooalson, to counteract the suspicion against Mrs. Ooal-son, and effect the restoration of his wile and baby; that Banks told him his confession would result in his reunion with his wife and baby, and that from his various conversations with Banks he felt confident that he had the assurance of Banks that all these results would follow the confession.

Banks said that appellant discussed his troubles, namély, his separation from his wife and baby, and his estrangement with his father-in-law, and the suspicion resting upon his mother-in-law, the low state of health of Mr. Ooalson, and asked the assistance of Banks, who replied that he would pray over the matter, and that, if he thought the appellant innocent, he would help him in any way within his power; that subsequently he told appellant that he had prayed over the matter and decided he was guilty; that appellant said, “I done that,” and said a knowledge of it would be a great relief to Mr. Ooalson, who was in a dying condition; that the appellant expressed a desire to confess, and that a meeting was arranged by Banks, in which the confession was made in the presence of Ooalson and others; and appellant afterwards expressed relief in getting the matter off his mind. Banks disclaimed ever promising to help in any way in court, or to intercede in trying to get appellant’s wife and baby back and declared that he offered no inducement to make the confession.

The confession was not evidence unless voluntary. Womack v. State, 16 Tex. App. 188; Branch’s Ann. Texas Penal Code, § 66; Underhill’s Grim. Evidence, § 126. Whether appellant’s testimony, standing alone, would have been sufficient to discredit the voluntary character of the confession is open to question. Rice v. State, 22 Tex. App. 655, 3 S. W. 791; Branch’s Ann. Tex. Penal Code, p. 41. If, however, it be conceded that it was sufficient to produce this result, the denial of its truth by the witness Banks produces a conflict of evidence as to the existence of facts, and conceding the truth of Banks’ testimony, appellant’s confession was not induced by any promise. The solution of this conflict, under the practice prevailing in this state, was for the jury. The most that appellant might have demanded was that the jury be called upon to determine whether the confession was voluntary, and to reject it if they did not believe it to be so. Johnson v. State, 49 Tex. Cr. R. 314, 94 S. W. 224; Underhill’s Crim. Evidence, § 126, note 16; Kennon v. State, 46 Tex. Cr. R. 359, 82 S. W. 518 ; Corpus Juris, vol. 16, p. 1003, note 32. Considering the record as it is made, and in view of the conflict of evidence, the court would not have been warranted in withholding the confession from the jury. No request was made to have the jury determine its character.

While the corpus delicti may not be proved by the extrajudicial confession alone, such confession may be used to aid in the proof. Jackson v. State, 29 Tex. App. 464, 16 S. W. 247; Kugadt v. State, 38 Tex. Cr. R. 681, 44 S. W. 989; Gallegos v. State, 49 Tex. Cr. R. 115, 90 S. W. 492; Lott v. State, 60 Tex. Cr. R. 163, 131 S. W. 553; Branch’s Ann. Tex. Penal Code, p. 1049. In the instant case, the corpus delicti was established by proof independent of the confession. Aside from the confession, the evidence warrants the conclusion that the poison was mixed with the coffee grounds with criminal intent. This satisfied the law demanding proof of the corpus delicti. The appellant’s confession was available to identify him as the criminal agent. Sullivan v. State, 40 Tex. Cr. R. 639, 51 S. W. 375; Gallegos v. State, 49 Tex. Cr. R. 115, 90 S. W. 492; Corpus Juris, vol. 16, p. 1003; Chapman v. Commonwealth (Ky.) 112 S. W. 567; Wharton’s Crim. Evidence (10th Ed.) § 633.

The facts supporting the inference that crime was committed—that is, that strychnine was put in the coffee grounds with intent to kill or Injure—being uncontroverted and not dependent upon the confession, we are of the opinion that the court did not commit error warranting a reversal in refusing to instruct the jury “that the confession could not be taken into consideration in determining that the crime was committed.” Lott v. State, 60 Tex. Cr. R. 167, 131 S. W. 553; Southern v. State, 60 Tex. Cr. R. 579, 132 S. W. 778.

A continuance was sought because of the absence of two physicians, who, according to the averments, would have testified that during the spring and fall of 1918 appellant “was suffering with a nervous disease, which, has affected his mind and mental capacity to such an extent as to render him wholly incapable of making an extrajudicial confession.” The confession proved was made in September, 1919; the record revealing no continuance of the disorder or its existence at any time subsequent to the fall of 1918, nor that it prevailed at the time the confession was made, the action of the court complained of does not require or justify a reversal of the judgment. Wooten v. State, 51 Tex. Cr. R. 428, 102 S. W. 416; Leache v. State, 22 Tex. App. 279, 3 S. W. 539, 58 Am. Rep. 638; Roberts v. State, 231 S. W. 760.

Finding no reversible error, the judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant insists in his motion for rehearing that we erred in holding coffee grounds to be food, within the meaning of article 1077, Vernon’s P. C. Commonwealth v. Caldwell, 190 Mass. 355, 76 N. E. 955, a Massachusetts case, is cited as authority for the contention. We have examined this case, and do not agree with the conclusion reached therein in regard to this matter, which is that tea and coffee are not provisions, within the comprehension of a statute which forbids peddling provisions, etc., without license. No analysis worth mentioning appears in the opinion in that case, which seems to be decided on the authority of Com. v. Lutton, 157 Mass. 392, 32 N. E. 348, and Com. v. Reid, 175 Mass. 325, 56 N. E. 617. Neither case is authority for the holding in the Caldwell Case. In the Lutton Case the court merely decides that oleomargarine and butterine are provisions, and in the Reid Case that ice is not a provision.

In a charge such as that under consideration, the gravamen of the offense is the intent of the accused to take human life by the use of poison, and while the lawmakers have seen fit to make such use criminal, when it consists in mingling the poison with food, drink or medicine, it appears to us, unless there be some substantial doubt as to whether the article with which the poison was mingled be food, drink, or medicine, the question would be of no great weight. In addition to the authorities cited in our original opinion, supporting the proposition that coffee or coffee grounds are entitled to be considered as food, we call attention to article 699, Vernon’s P. C., wherein it is stated that the term “food,” as used in our pure food laws, shall include all articles used for food; drink, confectionery, or condiment, by man. We see no good reason for holding that Smith may be punished for selling adulterated food, to wit, coffee under the pure food laws, and that Jones cannot be convicted under another of our laws for trying to take life by mingling poison with a food, to wit coffee, when the only very dubious reason which can be assigned for the distinction is that coffee is a food under one law and not a food under the other.

We are in accord with State v. Ohmer, 34 Mo. App. 115, which holds tobacco not to be a food, and not in disagreement with Botelor v. Washington, Fed. Cas. No. 1,685, which holds rye chops to be food for animals, but not of the human species. We also think it too restrictive to require that what is meant by the term “food” be some article in a then condition for immediate human consumption without further process.

Our opinion is questioned for its statement that appellant testified that after placing the poison in the coffee pot he recanted and sought to remove same, but its presence had been discovered and he was prevented. This statement appeared in appellant’s confession, and we should have so stated; but the inadvertence was of no effect upon the conclusions reached.

Appellant also contends that if his confession be taken to establish that he put the poison in the coffee pot, it must also be taken to establish that, before said poison was actually taken by any one, he changed his mind and went back to get the poison out of said pot, but was prevented by same having been discovered and removed by another person, and further, that he cannot be convicted upon proof of a mere intent to commit the offense in question. The question was one of fact. If appellant put the poison in food with intent to kill, the express terms of article 1077 were met. If he did not, it was aj question for the jury to find under the facts.

This contention is not akin to a voluntary return of recently stolen property, or the removal of the load from a gun which was prepared for the purpose of committing murder, or the removal of a death trap prepared for a victim before any injury. There is no qualifying clause in article 1077, supra, by which it is provided that, if the poison be discovered and removed by some one else,- or by the accused or his victim before the consummation of the intended-crime, there should be no guilt.

Being unable to agree with the contentions of appellant, his motion for rehearing will be overruled. 
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