
    STEELE v. STATE.
    (No. 5693.)
    (Court of Criminal Appeals of Texas.
    March 3, 1920.
    On Motion for Rehearing June 25, 1920.)
    1. Criminal law <&wkey;736(I) — 'Whether contents of bottle was powder used by defendant in trying to poison another held for jury.
    In prosecution for placing poison in water with intent to injure and kill another, the question of identity of the contents of bottle analyzed by witness, and found to be strychnine, as the powder thrown in the water and placed in bottle for purpose of being analyzed held for jury.
    2. Criminal law i&wkey;423(7) — Husband and wife may conspire so that declarations of one admissible against the other.
    A husband and wife may conspire together to commit an offense, so that the acts and declarations of one not on trial may be admissible against the other.
    3. Criminal law <&wkey;427(5) — Conspiracy may - be shown by circumstances.
    A conspiracy may be shown by circumstantial evidence.
    4. Criminal law i&wkey;>423(2) — Acts and declarations of coconspirator in absence of defendant admissible.
    Under Vernon’s Ann. Code Cr. Proc. 1916^ art. 783, note 109, the acts and declarations of a coconspirator in pursuance of a common design, though made in the absence of the one on trial, are admissible in evidence against him, if made pending the conspiracy.
    5. Criminal law <&wkey;427(5)— Conspiracy need not be established aliunde before declarations of coeonspirators admissible.
    It is not necessary that a conspiracy be established aliunde before the acts and declarations of the coconspirators, made in the absence of the accused, become admissible in evidence; but there must be testimony, other than that of declarations of conspirators, which will tend to show an acting together of the parties.
    6. Criminal law <&wkey;>779— Instruction as to reasonable doubt necessary where conspiracy denied.
    In a criminal case, where evidence of the acts or declarations of a coconspirator have been admitted, and where the issue of conspiracy is contested, the court must affirmatively charge the jury that they must not consider, as against the accused, the acts or declarations of the alleged coconspirator, unless it be shown beyond a reasonable doubt that there was in fact a conspiracy, or an acting together of the parties in such criminal enterprise.
    7. Criminal law <&wkey;>427(5) — Acts and declarations of defendant’s wife admissible where conspiracy shown.
    In a prosecution for placing poison in water with the intent to kill another, evidence held to prove conspiracy between defendant and his wife, making the wife’s acts and declarations admissible against him.
    8. Criminal law <§=761 (8) — Instruction held not to assume that substance found in water was poison. f
    
    In a prosecution for placing poison in water with the intent to injure and kill another, instruction, charging jury to acquit defendant if it believed or had reasonable doubt that some person other than defendant “mixed and mingled the noxious potion and substance, if any, with water,” held not objectionable, as against contention that it was on the .weight of the evidence, and assumed that the substance found in the water was poison.
    9. Criminal law&wkey;>427(4, 5) — Conspiracy must be proved beyond reasonable doubt before jury'can consider acts of coeonspirator, but jury may consider such acts on question of conspiracy.
    A jury, before considering the testimony as to acts and declarations of alleged cocon-spirator, must find beyond a reasonable doubt that conspiracy existed, but may consider such testimony in passing upon question of whether the existence of a conspiracy has been proved beyond a reasonable doubt.
    10. Criminal law <&wkey;736(I)— Conspiracy between defendant and his wife held for jury.
    In prosecution for placing poison in water with intent to injure another, whether defendant’s wjfe was a conspirator, acting with defendant in an effort to kill such person, or seriously injure him by poisoning him, held a question for the jury, under instructions from the court.
    11. Criminal law «&wkey;755t/2 — Refusal of cautionary instruction held proper, where conspiracy is for jury.
    ' In prosecution for placing poison in water with intent to injure and kill another, where there was evidence making it a question for the jury as to whether defendant’s wife had conspired with him in an effort to kill or injure such .other person, court properly refused to instruct jury not to consider evidence as to threats against such person made by defendant’s wife. ^
    1^. Criminal law <&wkey;949(2) — Motion and affidavits for new trial must be verified.
    Refusal to grant a new trial on the ground of newly discovered evidence will not be considered on appeal, where the affidavits attached to the motion were sworn to before one of appellant’s attorneys, and where the motion for the new trial was not duly sworn to.
    On Motion for Rehearing.
    13. Criminal law <&wkey;>595(l) — Refusal of continuance for absence of witness held error, in view of importance of testimony.
    In prosecution for placing poison in drinking water with intent to injure and kill another, where most of the state’s testimony tending to show the commission of the offense involved defendant’s wife in one way or another, and where wife, if present, would have given very material testimony, refusal to grant continuance for absence of wife because of illness held reversible error.
    Appeal from District Court, Cass County; H. E. O’Neal, Judge.
    J. B. Steele was convicted of an attempt to murder and he appeals.
    Reversed and remanded.
    Bartlett & Patman, of Linden, and Cunningham, McMahon & Lipscomb, of Bonham, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Cass county of placing poison in water with intent to injure and kill J. M. McCormick, and his punishment fixed at four years’ confinement in the penitentiary.

McCormick was the station agent at the little town of Avinger, a station on the Missouri, Kansas & Texas Railway, not very far from Jefferson. Appellant, J. B. Steele, was helper at said station, and his wife, Mrs. Steele, was working in a railroad office at Jefferson. There seems to have been in the breast of Mrs. Steele a desire 'to be a station master herself, and to hold down the station at Avinger, the salary of which was something more than §100 per month.

Because of various matters, Mr. McCormick became dissatisfied with appellant’s work, and notified him that his services would be dispensed with, at which appellant became angry, and refused to quit his job, claiming that he had not been hired by Mr. McCormick, and that the latter had no right to discharge him. Appellant’s feeling seems to have become very bitter, and to have been shared by his wife. Various threats of both parties appear in the necord, and it was the theory of the state that in the .commission of this offense the husband and wife acted together, the wife procuring the poison and furnishing it to the husband, who placed it in the water at the station of Avinger. It is claimed that the . poison was placed in the water in the station on Sunday, the 30th of September, 1917. A witness for the state drank a small quantity of said water on Monday morning following, and, perceiving its bitter taste, threw the remainder of that which he had taken from the cooler away, and called Mr. McCormick’s attention to the facts. An examination of the cooler disclosed a quantity of white powder floating on the ice on top of the water, and some of this powder was sent in a bottle by Dr. J. W. Peebles to a chemist in Dallas, by whom it was analyzed and pronounced strychnine. The witness who took one swallow of the water described his feeling resulting from taking the same. This is a sufficient statement of the facts.

Appellant was tried at the September term, 1917, of said court, and then made his first application for a continuance, because of the absence of his wife and one Sims, said application being overruled. We might content ourselves with observing that no bill of exception was reserved by appellant to this action of the trial court. We have always held it to be necessary, in order to procure a review of such action by this court, that appellant take his bill of exceptions to the overruling of his application for continuance. Merely raising the question in a motion for new trial is not sufficient. Trevino v. State, 38 Tex. Cr. R. 64, 41 S. W. 608; Green v. State, 49 Tex. Cr. R. 647, 98 S. W. 1059; Branch’s Ann. Penal Code, § 304, and authorities.

It further appears that this case was tried at a former term of said court, and that at said time the wife of appellant was present, and, notwithstanding the state used the same evidence as the application for continuance contended would be relied on in the instant trial, the wife was not then placed on the witness stand, or used as a witness.

We further observe, as to her alleged inability to attend court at the instant trial, that it appears that she underwent an operation in Dallas for female troubles in June, 1919, approximately three months before the date of this trial, and that when this ease was called in September, 1919, she was living in Et. Worth, and had been going back and forth in an automobile from Et. Worth to Dallas, a distance of some 30 miles, for treatment. Nothing in the action of the trial court in overruling said application presents any tenable ground for our review.

By proper bills of exception, appellant complains of the admission of the testimony of N. O. Hamner, the chemist who analyzed the substance found in the alleged poisoned water. Mr. Hamner lived in Dallas, and stated that on the morning of October 2, 1917, he found on his desk a bottle, whose content was analyzed by him and found to be strychnine. Appellant’s objections were based on the lack of identification of the said bottle, and the failure to show proper custody of same from the time that the alleged poisonous substance was placed therein until the same reached the witness Hamner.

Dr. Peebles testified that he removed some of the powder from the alleged poisoned water, placed the same in a bottle, sealed it up, and mailed it by registered mail to Dallas, to Dr. Webb, Chief Surgeon of the Missouri, Kansas & Texas Railway; that said bottle was sealed by pasting paper across the top; that it was sent on September 30, 1917. This witness also identified the bottle testified about by witness Hamner as the same one sent by him to Dr. Webb, and containing the substance taken from the water cooler. The witness Hamner testified that when he found the bottle on his desk on October 2 he made some inquiry, and ascertained that the bottle had come from the office of Drs. Webb & Knott, who were surgeons for the Missouri, Kansas & Texas Railroad; that when he first saw the bottle, it was sealed up, by having paper placed over the top; that after making a chemical analysis of the contents of the bottle, he gave same to the district attorney. His identification of the bottle which he found on his desk, and in which he found strychnine, was positive.

We think this sufficient to take the question of the identity of the bottle and its contents to the jury. The case was one of circumstantial evidence, and the court instructed the jury fully as to the law on this character of evidence. .No exceptions seem to have been taken to that part of the court’s charge, and no special instruction was asked relative to the identity of said bottle or its contents.

Appellant’s bills of exception Nos. 2 to 8, inclusive, relate to testimony as to the acts and declarations of the wife of appellant, most of which were out of his presence and hearing. The matter so complained of may be briefly stated: The witness Stebler testified that he .was a druggist, and sold Mrs. Steele certain strychnine in the latter part of September, 1917 — some time between the 25th and 30th of said month. Appellant’s objection to this appears in his bill No. 2. Mrs. Howell testified that Mrs. Steele had strychnine a short time before the alleged poison was found in the water at Avinger, and that said Mrs. Steele told her (witness) that appellant rang her up and told her to buy it and send it to him to kill some rats; further, that Mrs. Steele told her that McCormick had not treated appellant right; that he would not put appellant to work; and that she would see that she had revenge out of McCormick if it took her lifetime to get it; further, that on the morning after the alleged poisonous substance was found in the water, witness went to appellant’s room to call said wife, not knowing that appellant was there; that the room door was ajar, and,. hearing nothing, she pushed the door open, and appellant and his wife were standing close together and talking low; that they seemed amazed, and looked scared like to her. This appears in bill No. 3.

Mr. Howell testified that a short time before the occurrence of the finding of the supposed poison in the water, he heard Mrs. Steele say she had a letter from appellant, asking her to send some strychnine up there; that he wanted to kill some rats. This appears in bill No. 4.

The witness Myers testified that Mrs. Steele told him that she was going to fix McCormick, going to get his job; that her husband did not like McCormick, and she did npt like him; that she would get even with him; that a few nights before something was put in the''water at Avinger Mrs. Steele went to Avinger in a car; that Mrs. Steele told him before that that she wanted the Avinger office; that she wanted it herself ; and that she asked witness if he thought her qualified to fill it. This appears in bill No. 5.

The witness Minnie Davis testified that in September, 1917, Mrs. Steele showed her a box with a white powder in it, which she said was strychnine; that Mrs. Steele went to Avinger a few nights before it was claimed something was found in the water at the station. This appears in bill No. 6.

The witness Hicks testified that a few nights before it is claimed that the water was poisoned, Mrs. Steele went with him and others in a car from Jefferson to Avinger, but did not come back with them; that she got out of the car at the depot at Avinger. This appears in bill No. 7.

The witness Harrison stated that a few days prior to the water poisoning occurrence he saw Mrs. Steele at his hotel at Avinger; that she came to the hotel about sunup one morning, and stayed until the evening or night train; that she talked some about McCormick’s books and express matters, and said she rated him a very ungrateful man, and that he was ungrateful in the way he was doing down there, and said something to the effect that she did not think his job would last long. This appears in bill No. 8.

It is thus shown by said bills of exception that the state introduced evidence of the acts, conduct, and declarations of Mrs. Steele, which, according to the state’s theory, showed that she was acting with appellant in procuring and using the alleged poison, with the intent to kill or injure McCormick, and that they were coconspirators; and upon this ground, the state claimed such evidence was admissible.

Appellant’s objections in each bill appear to be the same, and are to the effect that the testimony calls for acts and conversations of the wife upon issues not made by appellant ; the said wife not being a witness, that said testimony was but hearsay, and that no conspiracy between the husband and wife was 'shown, or attempted to be shown.

Can a husband and wife conspire together to commit an offense so as that the acts and declarations of either spouse, not on trial, may be admissible against the other who is on trial? We think this question must be answered in the affirmative, under the authorities in this state. Cox v. State, 8 Tex. App. 256, 34 Am. Rep. 746; Cook v. State, 22 Tex. App. 511; Smith v. State, 46 Tex. Cr. R. 267, 81 S. W. 936, 108 Am. St. Rep. 991; Smith v. State, 48 Tex. Cr. R. 233, 89 S. W. 817.

We are also of opinion that a conspiracy may be shown by circumstantial evidence, as may any part as well as the whole of a criminal enterprise. Thompson v. State, 77 Tex. Cr. R. 417, 178 S. W. 1192; Luttrell v. State, 31 Tex. Cr. R. 493, 21 S. W. 248; Cameron v. State, 69 Tex. Cr. R. 439, 153 S. W. 867; Yantis v. State, 65 Tex. Cr. R. 564, 144 S. W. 947; Bailey v. State, 65 Tex. Cr. R. 1, 144 S. W. 996.

The acts and declarations of a coconspirator in pursuance of a common design, though made in the absence of the one on trial, are admissible in evidence against him, if made pending the conspiracy. Vernon’s C. C. P., p. 648, § 109 et seq.

It is not necessary that a conspiracy be established aliunde, before the acts and declarations of the coconspirators, made in the absence of the accused, become admissible in evidence. If such were the rule, there would be no need for admitting against the accused on trial such acts and declarations of coconspirators. The case would be already made out. We are of opinion, however, that there must be testimony other than that of declarations of coconspirators, which will tend to show an acting together of the parties, and unless there be such evidence other than such declarations, the conspiracy ■ is not made out. We also think that in every case where the issue of conspiracy is contested the trial court must affirmatively charge the jury that they must not consider as against the accused on trial the acts and declarations of the alleged coconspirators, unless it be shown beyond a reasonable doubt that there was in fact a conspiracy oían- acting together of said parties in such criminal enterprise. Arnold v. State, 9 Tex. App. 435; Dungan v. State, 39 Tex. Cr. R. 115, 45 S. W. 19; Luttrell v. State, 31 Tex. Cr. R. 493, 21 S. W. 248; Serrato v. State, 74 Tex. Cr. R. 413, 171 S. W. 1133.

The court in the instant, case gave such charge. The testimony showed closely related acts of the wife; that she bought strychnine shortly before the alleged attempted poisoning, and that she said appellant told her to get it; that she went to Avenger just before said occurrence. It further appears in the record that the alleged poison was found in the water on Monday morning, and that on the night before appellant said to a witness, referring to McCormick, that the son of a bitch would not live more than 36 hours. We conclude that the trial court did not err in admitting testimony as to the acts and declarations of the wife, upon the theory that she was a cocon-spirator.

Appellant escepted to that paragraph of the court’s charge, as follows:

“You are further instructed that if you believe from the evidence or have reasonable doubt that some other person other than J. B. Steele mixed and mingled the noxious potion and substance, if any, with water, then, in that event, you will find the defendant not guilty.”

The ground of the exception to the above is that said charge is on the weight of the evidence, and assumes that the white substance found in the water was poison. We cannot agree with appellant. It was not controverted that on the occasion in question there was a white powder placed in the water by some one, and that said powder was bitter to the taste. The only possible ground for this contention of appellant must be based on the use of the word “noxious” in said charge, and we are unable to find where such word is held to mean poison or poisonous, and we think the criticism of the charge unwarranted. In this connection, we observe that in his special charge No. 2 appellant refers to the substance, which was placed in the water, as strychnine.

Appellant also asked that a special charge be given to the effect that, unless the jury believe beyond a reasonable doubt that the white substance found in the water was strychnine, appellant should be acquitted. This charge was refused upon the ground that is was covered in the main charge. Referring to the main charge, we see that the court confined the question of the poisonous substance throughout to whether or not the same was strychnine.

On the question of conspiracy, the trial court charged as follows:

“You are instructed that you cannot consider the acts and declarations of Mrs. J. B. Steele made to Quill Howell, Mrs. Quill Howell, E. W. Stebler, A. A. Myers, Leonard Hicks, or Miss Minnie Davis, if any such statement were made for any purpose whatsoever, unless you should first find from the evidence beyond á reasonable doubt that J. B. Steele, the defendant, conspired with Mrs. J. B. Steele to mingle and cause to be mingled with a certain drink, to wit, water, a certain poison, to wit, strychnine, with the intent then and there and thereby to injure or kill J. M. McCormick, as alleged in the indictment; and if you should find that said conspiracy was so formed, then the acts and declarations of Mrs. J. B. Steele could be considered by the jury in passing upon the animus and intent and purpose of the defendant in committing the crime, if he did commit it, and for no other purpose.
“You are further instructed that before the acts and declarations of Mrs. J. B. Steele can be used as evidence it must be shown beyond a reasonable doubt that a conspiracy existed' between Mrs. J. B. Steele and the defendant, J. B. Steele, to commit the very act described in the indictment, and, if there is a reasonable doubt as to the existence of such a conspiracy, the acts and declarations of Mrs. J. B. Steele cannot be considered by you for any purpose.”

To this charge, appellant excepted, and asked the following special charge:

“I charge you, gentlemen of the jury, that before you can consider any of the testimony of the witnesses A. A. Myers, Quill Howell. Mrs. Quill Howell, Minnie Davis, Leonard Hicks, and E. W. Stebler as to any acts or conversations with the wife of defendant, you must believe from the other evidence (other than such acts of conversations with the wife of the defendant) that she and the defendant had entered into a conspiracy to commit the offense charged in this indictment prior to its consummation, if any there was.”

This the trial court refused, and the matter is presented here upon appellant’s contention that such action was erroneous. We think the charge of the court substantially correct, and that this special charge should not have been given. The same seeks to announce an incorrect rule, and one which, if ingrafted on the law of conspirators and principals, would practically destroy all power to introduce the acts, as well as the declarations of the parties themselves, as tending to establish their acting together. Jones v. State, 214 S. W. 322; Branch’s Crim. Law, § 245 et seq; Middleton v. State, 217 S. W. 1046.

Appellant sought by special charge to have the jury told that they should not consider any of the alleged threats of Mrs. Steele, as testified to by Mr. Howell, Mrs. Howell, and Mr. Myers. Mrs. Howell testified that Mrs. Steele said she would have revenge out of McCormick if it took her a lifetime to get it. Mr. Howell testified to no threats. Mr. Myers said • that Mrs. Steele told him that she did not like McCormick; that she was going to get even with him; that she was going to fix him; that she was going to get his job. That Mrs. Steele was a conspirator, acting with her husband in an effort to kill Mr. McCormick, or seriously injure him by poisoning him, was a question for the jury, under the court’s instructions, and we think that testimony of her threats, as well as her acts, which shed light on her attitude in the matter, was material, and that the charge was properly refused.

Appellant’s special charge No. 2, to the effect that before the jury could convict him they must believe that the alleged injured party, McCormick, did not know of the mixing of the strychnine with the water was not a correct statement of any issue raised by the evidence in this record.

Appellant sought a new trial, setting up, among other grounds, newly discovered evidence, attaching to said motion certain affidavits. Our Assistant Attorney General objects to our consideration of said affidavits, because same were sworn to before one of appellant’s attorneys (see Branch’s Ann. Penal Code, § 194), and also objects to our consideration of said ground of newly discovered evidence, because the motion for new trial was not duly sworn to (see' Branch’s Ann. Penal Code, § 193). We are compelled to sustain both these objections, and the question of newly discovered evidence must pass out.

We have given this case our careful and patient examination, and find no reversible error. The judgment is accordingly affirmed. '

On Motion for Rehearing.

In this case, upon a careful review of the facts and our former opinion, we have concluded that possibly we were in error in holding that the trial court did not err in refusing to grant the application for a continuance, on account of the absence of appellant’s wife. There is no question but that her testimony was of an exceedingly material character, and that if she had been present and testified the result might have been different. Almost all of the state’s testimony tending to show the commission of this offense by the appellant, is testimony in which the wife is involved in one way or another. Being unwilling that injury should be done, and preferring to hold against possible injustice, we have concluded that we should grant this motion, and it is accordingly done; and the judgment of affirmance is set aside, and the cause is reversed and remanded for a new trial. 
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      <&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     