
    CROSS v. STATE.
    (No. 8573.)
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1925.
    Rehearing Denied Feb. 25, 1925.)
    1. Criminal law <§=>363 — 'Testimony as to finding paris green about defendant’s premises two days after alleged poisoning held admissible.
    In prosecution for poisoning food, testimony as to finding paris green about defendant’s premises on second day after occurrence held admissible as res gestse.
    2. Criminal law <§=i09l (4) — Bill of exceptions to nonexpert testimony must show witnesses’ lack of knowledge or necessity of expert knowledge.
    Bill of exceptions to nonexpert testimony must show witnesses’ lack of knowledge on subject, or necessity of expert knowledge, to authorize reversal.
    On Motion for Rehearing.
    3. Criminal law <§=>936(6) — Absence of witnesses cannot be raised for first time by motion for new trial.
    Defendant filing no written motion for permission to withdraw announcement of ready and for continuance or postponement of trial, under Code Cr. Proc. 1911, art. 616, on discovering that his witnesses would not be present, cannot set up their absence as ground of motion for new trial.
    Appeal from District Court, Haskell County; W. R. Chapman, Judge.
    Robert Cross was convicted of poisoning food with intent to injure others, and he appeals.
    Affirmed.
    L. D. Ratliff and Dennis P. Ratliff, both of Haskell, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

By indictment appellant was charged with mixing poison with food with the intent to injure Ei. S. Dunlap and other persons unknown to the grand jury;, upon conviction his punishment was fixed at confinement in the penitentiary for a period of two years.

The reliance of the state was upon circumstantial evidence, which is deemed sufficient to support the finding of the jury to the effect that paris green was, by the appellant, put in the coffee pot used by Dunlap with the intent to poison him. Appellant testified and denied the commission of the offense.

The state’s theory, supported by the testimony, is this: Dunlap was a creditor of the appellant’s mother and lived alone. Traveling in his buggy, appellant went to the home of Dunlap, passing a schbolhouse on the way. While at the home of Dunlap, appellant got a bucket of water from the cistern and put it on a shelf on the porch of Dunlap’s house. Appellant’s arrival was late in the evening. Dunlap prepared and ate supper of which appellant did not partake, claiming to have been ill. Dunlap became violently ill during the night. Appellant left early the next morning. Paris green was found in the coffee pot used by Dunlap at supper, also at the water bucket, the cistern, and along the road which was traveled by appellant. At the schoolhouse mentioned there was found a box which, according to the testimony, had contained paris green, and upon which box was the cost mark of a merchant who, a short time before, had sold a box of paris green to the appellant. The box found was identified by the merchant.

Bills of. exception complain of the receipt in evidence of the testimony of Gregory and Holmsley to the effect that on the second day after the occurrence they examined the buggy, which was at the home of the appellant and which had been used by him in traveling to the house of Dunlap and found under the seat two pieces of a paste board box. Gregory said it had on it what looked like paris green. Quoting him:

“In my opinion that is paris green on it. I have not personally had any experience in using paris green; I have seen it used in poisoning cotton several years.”

As stated in one of the bills, Holmsley testified :

“I found some green powder looting stuff; looked like paris green; that is what I thought it was.”

Guinn said that he examined the premises of Dunlap and found little specks of paris green on the ground near the cistern. He also found paris green on the gallery of the ¡house, in the water bucket, on the kitchen floor and in the coffee pot. He said he had used paris green in killing worms and ants and was acquainted with it.

Two objections were urged against the testimony of each of these witnesses. 'One was to the point that the evidence was too remote and was not res gestae. This objection, we think, was not tenable. The conditions described by the witnesses were relevant circumstances tending to support the state’s case. We have failed to perceive any evidence in the record requiring a technical or expert knowledge to identify paris- green, that is, to recognize it when it is seen. The witnesses Guinn and Gregory, however, testified to facts which show a familiarity with the substance. Holmsley-’s testimony was cumulative of theirs upon an issue which was not controverted, that is, that on the box found in the buggy of the appellant was a powder which looked like paris green and which the witness thought was paris green. The bill does not show á lack of knowledge on the subject, nor that expert knowledge was necessary. Such showing in the bill would be essential to authorize a reversal. Dane v. State, 36 Tex. Cr. R. 84, 35 S. W. 661; Bratt v. State, 38 Tex. Cr. R. 122, 41 S. W. 622; Holder v. State, 81 Tex. Cr. R. 197, 194 S. W. 162. No complaint is made of the charge of'the court.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant contends we were in error in not sustaining his bill of exception taken to the refusal of the court to grant him a new trial. He sets up in said motion that when his case was called for trial four witnesses were absent, all of whom had been properly served with process ; that he announced ready, expecting the witnesses to come in as he had made arrangements to have them brought from their homes some 18 miles distant from the courthouse; that one of the witnesses had a car and had agreed to bring the others, but that, on .the morning of the trial, this witness’ child was taken seriously ill with diptheria which required him to use his car in taking the child to a sanitarium in another county; that after the trial had proceeded for some time and his witnesses still had not come he sent a service car after them, but on account of the condition of the roads the driver was unable to make the trip and return with the witnesses in time to testify. It is also averred in the motion that he asked the court for a -postponement of the case. Attached to the motion are the affidavits of the service car driver and some of the witnesses who were absent. Article 616, O. G. P., provides that:

“A continuance may be granted on the application of the state or defendant after the trial has commenced, when it is made to appear to the satisfaction of the court that by some unexpected occurrence since the tz-ial'commenced, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot be had, or the trial may be postponed to a subsequent day of the term.”

After appellant discovered his witnesses would not be present be filed no written motion asking permission to withdraw his announcement and for a continuance or postponement of his trial. Many cases will be found collated in the notes under article 616 holding that such a proceeding is requisite, and that in its absence the matter .can not be raised upon motion for new trial. See Graves v. State, 65 Tex. Cr. R. 419, 144 S. W. 961; Smith v. State, 40 Tex. Cr. R. 391, 50 S. W. 938; Batson v. State, 36 Tex. Cr. R. 606, 38 S. W. 48; Bryant v. State, 35 Tex. Cr. R. 394, 33 S. W. 978, 36 S. W. 79; Childs v. State, 10 Tex. App. 183. Many other cases to the same effect will be found under section 340, p. 195, Branch’s Ann. P. C.

It is manifest that without enforcement of this rule orderly and expeditious trials could not be had. If the point should be decided as contended for by appellant, the mere verbal suggestion of a postponement or continuance for an absent witness would lay a predicate, and the trial then proceed with accused taking chances of an acquittal; if disappointed in obtaining such result he could raise the question for the first time in his motion for new trial as to the materiality of the absent witness’ testimony and demand a retrial. We cannot give our sanction to such procedure. The only case to which we are referred by appellant is Cooper v. State, 72 Tex. Cr. R. 645, 163 S. W. 424. It will be observed that the judgment was not reversed upon this point alone. There appeared to be a number of matters complained of, and the court held that while no one might have been sufficient to, authorize a reversal, yet when considering them together the court was not satisfied to permit a conviction to stand in that particular case. We do not regard Cooper’s Case antagonistic to the many holding to the doctrine which we have followed in the present instance.

The motion for rehearing is overruled. 
      <§=>For otter oases see same topic and KEY-NUMBER in all Key-NumDered Digests and Indexes
     