Appellant was convicted of murder in the District Court of McLennan County, and his punishment fixed at death.
Appellant insists that the first count of the indictment, under which he was convicted, is fatally defective. Same is as follows: *Page 481
"The grand jury of the County of McLennan and State of Texas, duly selected, organized and empaneled by the Judge of the 54th Judicial District of Texas, holding session of the District Court in and for said county, upon their oaths in said court present that heretofore, on or about the 3rd day of July, A.D. 1921, in said County of McLennan and State of Texas, W. T. Aven, did then and there unlawfully, with malice aforethought, kill Maud Aven, by then and there with intent to injure and kill her, the said Maud Aven, causing her the said Maud Aven to swallow a certain noxious substance injurious to the health and functions of the body, to-wit, arsenic, and the said swallowing of the said noxious substance by her the said Maud Aven, so administered as aforesaid by the said W. T. Aven did cause the death of the said Maud Aven on the 5th day of July A.D. 1921, in said County of McLennan and State of Texas."
The defect urged is that same should have said that Maud Aven "took the poison not knowing same to be a poison, or as the result of force, threats or fraud." Sanders v. State, 54 Tex. Crim. 101, and Grave v. State, 44 Tex.Crim. Rep., are relied on. Both were suicide cases in which there seems little or no question of the fact that the deceased actually did all of those things which brought about death and in which the accused was sought to be held as an accomplice or a principal upon the theory that he had procured the means or furnished the instrument by which the deceased in each case took her own life. There is nothing in the Grace case which appears to be a discussion of, or in any way refers to, the sufficiency of the indictment. The opinion in the Sanders case is so written as to leave it in doubt, as we understand it, as to what the exact conclusion of this court was. It does hold that the indictment must charge and the proof show that the poison was administered to deceased by the accused, and that if its language does not so import it will not be sufficient, and in the earlier part of the opinion appears language to the effect that if the indictment does not in some way negative the idea of self-destruction, or does not assert that the deceased did not know that the substance administered was poison, or does not show that it was administered by force, threats or fraud, it will not be sufficient. In the instant case the indictment charges that W. T. Aven * * * did unlawfully, with malice aforethought, kill Maud Aven by then and there with intent to injure and kill her, the said Maud Aven, causing her to swallow * * * arsenic, and the said swallowing of the said * * * so administered *Page 482 to her as aforesaid by the said W. T. Aven did cause the death of the said Maud Aven. This indictment, analyzed in the light of the reasoning in the opinion in the Sanders case, supra, leads us to conclude that when an indictment charges that the appellant administered the poison and caused the deceased to swallow it with intent on his part to kill and injure her, and that he did thereby kill her with malice aforethought, this sufficiently negatives the idea that appellant merely prepared the poison and went no further, — and that deceased thereafter took it herself with suicidal intent. The word "administer" in Webster's International Dictionary has the meaning "to give as a dose", and every meaning therein ascribed to said word denotes an act on the part of him who administers. The word is not one with merely technical meaning, but is of general use, and in the sense used in the instant indictment its import is to charge the accused as the actor, not merely to the extent of placing the poison in the hands or possession of deceased but as doing what is necessary to make its destructive power effective. No rule of pleading applicable under ordinary statutes requires the State to affirmatively plead a denial of matters in defense, nor to negative such defensive theories as may be within the knowledge of the accused. One charged in the usual form with murder by shooting another, might defend, in an appropriate case, by proving that he did not shoot the deceased but merely gave to deceased the pistol with which the latter shot himself. That such facts might develop and be within the knowledge of the accused, would furnish no ground for any attack upon the indictment. One charged with theft might defend on the ground that it was a case of mistaken identity as to the alleged stolen property, etc., etc., none of which would furnish basis for a motion to quash the indictment. So, — one who is charged as the actor, who administers poison to another with malice aforethought and with intent to kill and that he does thereby kill, does not seem to us to be in position of making a motion to quash the indictment, because forsooth he may be able to show on the trial that he did not in fact administer the poison to deceased but merely gave it to her in order that she might use it for self-destruction. There is no contention in the instant case on the facts that appellant merely procured the poison and placed it where the deceased could in fact take it. The facts show to the contrary and are in line with the allegation in the indictment that appellant administered to his wife the poison in question. The State's burden as to its pleading is met in any case when, in *Page 483 language of ordinary use and meaning, it is stated that the accused at a time and place named did those things which are denounced by statute as a crime.
We are constrained to believe that the distinguished jurist who wrote in the Sanders case, supra, after making the statements referred to in the earlier part of the opinion, when he came to the reasoning out of his conclusions, got away from the doctrine of said statements, and that his reasoning is strictly in line with what we have here concluded should be the proper announcement of the law applicable to the indictment. As stated above, there appears in the earlier part of the opinion a statement to the effect that the indictment would not be sufficient if it did not allege in some way that the fact that the article given was not known by deceased to be poison, or else that it was given by force, threats or fraud. From said opinion in the Sanders case we quote:
"It may be correctly stated, however, at this point that if the person in fact by his own hand gave or administered the medicine, even then he might be guilty."
This refers to the guilt of the person who, knowing the purpose of another to kill himself, administers with his own hand such poison to the would-be suicide. We quote further from said opinion:
"However, a party would not be justified in taking the life of the party who desires to forfeit his life by shooting the would-be destroyer at his request, for in that case it would be the direct act of the accused, and he would be guilty of homicide, although he fired a shot at the request of the would-be suicide. So it would be with reference to poison. If the suicide obtains the poison through the agency of another, that other knowing the purpose of the suicide to take his own life, the party furnishing it would not be guilty, yet if the party furnishing it, knowing the purpose of the suicide, and he himself gives the medicine or poison by placing it in the mouth or other portions of the body, which would lead to the destruction of life, then it would be the act of the party giving, and he would not be permitted to defend against the result of such fact. If appellant furnished Miss Baxter with the carbolic acid at her request, with full knowledge on his part that she intended to take it, and did take it, and destroyed her life, he, having no further agency in it, would not be guilty. But if knowing her purpose of destroying her life, at her request he prepared the medicine and himself placed it in her mouth, and she swallowed it, then it would be an administration of this *Page 484 poison and he would be punished in case of death as a murderer."
Manifestly one who at the request of another prepares a poison, and then in obedience to the request of the deceased places it in her mouth, can from no view be said to use force, threats or fraud, or to administer poison without the knowledge of such deceased. If then placing the poison in the mouth of deceased, regardless of her attitude or acquiescence or request, would make the accused guilty of homicide, we are unable to see the need for other allegations than one which simply states the fact of the acting and the administration of the poison to the deceased by the accused. We further note that it is the custom of this court when it holds an indictment fatally defective, to reverse and order the dismissal. This was not done in the Sanders case, supra, which was merely reversed and remanded. We do not believe the learned judge erred in the instant case in overruling the motion to quash.
Appellant's first bill of exceptions in this record was taken to the refusal of peremptory instruction asked by the defense. Its refusal was not error. Nor are we able to perceive error in the action of the trial court in declining to retire the jury while determining the admissibility of the confession of the accused. There might be cases in which this should be done, but no such showing is here made. The third bill of exceptions complains of the admission of the confession of the defendant. We have carefully examined all the matters complained of in said bill and are of opinion that the trial court properly admitted the evidence.
Appellant's fourth and fifth bills of exception appear to be combined. It is shown that exceptions were taken to the charge for the reason that it did not tell the jury that if appellant was in a state of insanity at the time the confession was obtained, it should not be considered for any purpose. We do not perceive any evidence in the record justifying the court in giving such a charge. The bill further complains of the refusal of a special charge seeking to have the jury told that if they believed that the county attorney promised appellant that if he would make a confession his co-defendant would be tried first and appellant would be taken to Hillsboro for certain purposes. Said special charge then proceeds in a manner not warranted by law to group and set forth various and sundry matters which, if believed by the jury, would render the confession incompetent. We do not believe a charge of this kind should have been given. The learned trial judge instructed the jury *Page 485 in the charge given them in regard to these matters and seems to have affirmatively presented appellant's theories in regard to the inadmissibility of said confession.
The sixth bill of exceptions is based on appellant's exception to the court's charge for the reason that it did not submit to the jury that if he gave his wife phosphorus, a poison not named in the indictment, that they should acquit. In appellant's confession he stated that he gave to his wife arsenic. The chemist who analyzed the contents of the stomach of deceased after death testified to the large quantity of arsenic found. The indictment charged a murder by the administration of arsenic. We find nothing in the record calling for the charge upon the hypothesis set forth in the special charge under discussion. The bill of exceptions presenting this matter is qualified at length by the court setting out testimony showing conclusively that said charge was not appropriate.
An exception was taken to the charge for its failure to submit the theory of insanity. We find no testimony in the record calling for the submission of such defensive theory to the jury. Nor are we able to agree with appellant's contention that the court should have submitted the law of circumstantial evidence.
We have given this record our careful consideration in view of the extreme penalty of the law but are of the opinion that a trial was given fair and impartial alike to the State and the defendant.
The judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.