Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life.
Upon the former trial severance was had at the request of the parties, there being three indicted, and appellant placd upon trial, and the case dismissed as to codefendant Maggie Rose. When the case was called for trial, resulting in this conviction, another motion was made for severance, supported by an affidavit to the effect that it was believed there was not sufficient testimony against codefendant A.B. Brooks to justify his conviction, and that his testimony was wanted, in case of his acquittal, for appellant on his trial. The severance was refused on the ground that, having severed at the previous trial, it was res adjudicata, and another severance could not be had; that is, by once exercising their statutory right of severance, they were thenceforth, in all subsequent trials, bound by that severance. We do not understand this to be a proper construction of the statute. The severance is granted for the trial. Upon subsequent trials the parties would have the right to change the order of trial, if in their judgment they thought it was to their interest. If the doctrine of res adjudicata would apply in this character of case, it would also in applications to change venue.
The court charged the jury: "If you believe from the evidence beyond a reasonable doubt that defendant F.A. Brooks, about the time and place stated in the indictment, and with a sedate and deliberate mind and formed design to kill the man mentioned in the indictment, did unlawfully give to said man, and cause him to swallow it, a poison mentioned in the indictment, mixed with beer, and that same was calculated and likely to produce death, and thereby kill deceased, then find defendant guilty of murder in the first degree, and assess his punishment at death or by confinement in the State penitentiary for life." This is objected to because it submits a different case than that set out in the indictment. The indictment *Page 351 charged appellant with the murder of an unknown man, by mingling and causing to be mingled certain poison called "laudanum," and certain poison called "morphine," and certain poison called "opium" with a certain drink, to wit, beer, with intent then and there to injure and kill and murder the aforementioned unknown human being; he and his codefendants well knowing that said party would drink and swallow said poisoned beer, and then and there intended that he should drink said poisoned beer, etc. Appellant was indicted under articles 647 and 649 of the Penal Code. The charge given would have justified a conviction without reference to these articles or the allegations contained in the indictment. Under the charge given, it was not necessary to his conviction that appellant should have mingled the poison with the beer. It was only necessary that he should have given deceased the poisoned drink. Had appellant given the poisoned beer, and the party died from it, he would have been guilty of murder, though he had not mingled the poison with the beer, under this instruction.
The verdict of the jury is attacked for insufficiency, in that it fails to specify the degree of murder. The verdict is in the following language: "We, the jury, find the defendant F.A. Brooks guilty as charged in the indictment, and assess his penalty at confinement in the State penitentiary for life." Article 712, Penal Code, provides: "If the jury shall find any person guilty of murder, they shall also find by their verdict whether it is of the first or second degree." This article has invariably been held mandatory, though the statute makes murder by poisoning murder of the first degree. See, directly in point, Johnson v. State, 30 Texas Crim. App., 419, and, for collation of authorities, see White's Ann. Penal Code, sec. 1262.
Two other sections of the charge are criticised — one with reference to what acts are sufficient to constitute a conspiracy, and the second as to the acts and declarations of the codefendant A.B. Brooks. Without entering into a discussion of these matters, upon another trial the alleged errors can be avoided by a more careful wording of the charge. From the errors discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.