We have carefully considered the motion for rehearing in this case and believe that the opinion heretofore rendered is correct. On this motion we will only consider the points specially called to the attention of the court by motion for rehearing, brief and oral argument of counsel for appellant, as follows:
1. The question raised by bill of exceptions No. 15 with reference to the admissibility of certain testimony detailing the declarations and statements made by the deceased Mrs. Rice immediately before her death, the contention of the defendant being that none of said statements and declarations were admissible either as a part of the res gestæ, dying declarations, or accusations of guilt undenied, for the reason that under our law the deceased being the wife of the defendant at the time said statements were made, are not admissible against him. The wife, if living, could not have been permitted to testify in respect to said matter, and, therefore, her statements and declarations were not admissible under any rule of evidence. We cannot agree to this contention. We do not believe that our Legislature ever intended such a construction when they enacted article 775 of the Code of Criminal Procedure, which provides that: "The husband and wife may in all criminal actions be witnesses for each other, but they shall in no case testify against each other except in a criminal prosecution for an offense committed by one against the other." Our Penal Code is divided into two grand divisions, one is offenses against the person, the other is offenses against property; therefore, it necessarily follows that this case is an offense against the person. We have a special statute, article 647, Penal Code, which provides that: "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, or shall wilfully poison or cause to be poisoned any spring, well, cistern or reservoir of water with such intent, he shall be punished by imprisonment in the penitentiary not less than two nor more than ten years." Now, with the reference to the case of Garnet v. State, 1 Texas Crim App., 605, and relied upon by appellant, on examination it will be found that the case was reversed purely upon the ground that Garnet was charged with an offense denounced by article 647 of the Penal Code above cited, and the trial judge, instead of submitting to the jury the offense described in the indictment, gave to the jury a charge upon an assault with intent to murder, an entirely different offense from that with which the defendant was charged. We believe that the court did right in the reversal of the Garnet case for the reason above stated. It will be observed that in the concluding part of the opinion in the Garnet case, that the court says that a new trial should have been granted upon the ground alone that *Page 166 the trial court erred in his charge to the jury. We do not understand that the question of an assault was really before the court in the Garnet case. It is true that the court discussed to some extent what it takes to constitute an assault, but the case was reversed solely upon the ground that the appellant was charged with a specific offense, to wit: administering poison, and the judge gave to the jury a charge upon an entirely different offense, to wit: an assault with intent to murder. "In the United States, according to the weight of authority, administering poison or any other harmful drug or substance to a person with intent to inflict injury amounts to an assault." See 2 American and English Encyclopedia of Law, page 960, and cases there cited. It is held by the Supreme Court of Georgia, in the case of Johnson v. State, 17 Southeastern Reporter, page 1070, "Where the accused put a deadly poison into the coffee with the intent and purpose that the same should be drunk by another, who without knowledge of the presence of the poison actually drank of the coffee, the poison was administered to him by the accused, and in so doing the latter committed an assault." See also Commonwealth v. Stratton, 114 Mass. 303; Carr v. State, 135 Indiana, 1. The court in the 114 Mass. say: "Although force and violence are included in all definitions of assault, or assault and battery, yet where there is physical injury to another person, it is sufficient that the cause is set in motion by the defendant or that the person is subjected to its operation by means of any act or control which the defendant exerts," citing Chit. Crim. Law, 799. 1 Cobbett's Crim. Law, 82. 2nd Greenl. Ev., Section 84. We hold that the administering of poison by the husband to the wife is an offense committed against her such as is contemplated by article 775 of the Code of Criminal Procedure, and makes her a competent witness against the husband. We, therefore, hold that the court did not err in permitting the declarations and statements of deceased to the witnesses who testified to the same to go to the jury, both as res gestæ and dying declarations. We do not think that the Miller case in the 37 Tex.Crim. Rep., and the Baxter case in the34 Tex. Crim. 516, are in point in this case. To our minds it is a monstrous doctrine to hold that where the husband poisons the wife that the wife is disqualified, by reason of our statute, to testify against him. We do not believe that our Legislature ever intended such to be the law. It would place the wife at the mercy of the husband. We believe this would be an unreasonable law, such as our law makers never intended, and did not pass.
2. This court has held in two opinions that the testimony of Mrs. Foster, Mrs. Pickett and other witnesses who heard the statements and declarations of deceased a short while before her death,was legal evidence and admissible. Certainly from the form of the statements and declarations as appear in the record it seems that deceased was speaking a fact and not an opinion. The language of the deceased was, "Go away, Ward! Go away, Ward! You know you did it. No longer than this morning you asked me if I used the syringe to-day," to which *Page 167 defendant made no reply. We understand the rule to be that if the statement be merely an opinion, the testimony would not be admissible, but from the record in this case it appears that deceased spoke a fact that she had knowledge of. It was a short hand rendition of the facts as appears from the record. We take the record as we find it and in this case it appears that she was stating a fact.
3. We think the testimony of Dr. Townes as to statements made to him by the deceased, Mrs. Rice, in the absence of the defendant, was admissible both as res gestæ and dying declarations, besides the same statement was substantially made time and again by deceased in the presence of defendant and not denied by him.
4. We do not think there was any injury done the defendant, or error on the part of the court in failing to limit the testimony of Mason Cleveland. Cleveland's testimony was merely to corroborate the testimony of the women, Long and Taylor, in a statement to him, Cleveland, wherein the defendant had undertaken to contradict them, and we cannot see how any injury resulted to the defendant by a failure of the court to limit same to the purpose for which it was introduced. It is true whenever extraneous matter is admitted in evidence for a specific purpose, incidental to, but which is not admissible directly to prove the main issue, and which might tend, if not explained, to exercise a wrong, undue or improper influence upon the jury as to the main issue, injurious and prejudicial to the rights of a party, then it becomes the duty of the court in his charge to so limit and restrict it that such unwarranted results cannot ensue. The rule requiring the court to limit and restrict the purpose for which testimony has been adduced, does not apply when the admitted testimony proves or tends to prove the main fact. Foster v. State, 32 Tex.Crim. Rep.; Leeper v. State, 29 Texas Crim. App., 63. It a well-known rule of this court that admitted evidence does not have to be limited by the court in his charge to the jury where said evidence can only be used for the purpose for which it was introduced. This rule applies to both impeaching and corroborating evidence, and Mason Cleveland's evidence was merely corroborative testimony.
We have carefully considered the record in this case, as well as the able brief and oral argument of counsel for appellant, but we are unable to find where the court in its opinion heretofore rendered has committed any error. We, therefore, overrule the motion for rehearing.
Overruled.
Davidson, Presiding Judge, dissents. *Page 168