I wrote an opinion reversing and remanding, but my associates believing the judgment ought to be affirmed took the record and affirmed. I can not agree with their conclusion.
The testimony, and the case generally, is materially changed on this appeal from what it was when before the court on former appeal, found reported in 65 Tex.Crim. Rep.. After the reversal on the former appeal the case was transferred to Presidio County, thence to Reeves County, thence to Culberson County, and back to El Paso County, its initial point. There seems to have been hung juries in all counties except El Paso.
The witnesses Van Horn and Mrs. Archer testified on this trial that appellant stated, in effect, that she killed her child. Van Horn seems to have been a new witness, coming into the case after the former *Page 427 appeal. Mrs. Archer had always denied, until Van Horn became a witness, in all of her testimony and at all times, that appellant ever made a statement indicating that she was connected with the death of her child. There is considerable testimony in the record bearing on this feature of the change she made in her testimony. It seems it was due almost entirely, largely at least, to the influence of Van Horn and conferences she had with the judge and prosecuting attorney. During the trial at which she changed her testimony she had positively denied any confession or remark of any sort by appellant incriminating herself. After the new male witness came into the case, and after the judge and prosecuting attorney had interviewed her, and during the argument of the case, she went back upon the stand and testified as stated above, indicating that appellant had virtually made a confession to killing the child. This was a radical change in her testimony and in direct contradiction of what she had always theretofore sworn. There is also testimony in connection with the immediate sickness of the deceased child that one J.D. Lea may have administered poison to the child. The theory of the State was that appellant administered arsenic to the child in a cup of coffee. Appellant introduced evidence showing that if arsenic was administered to the child it was done by Lea. Lea did not testify on this trial. In this connection it is shown that Lea boarded with appellant, and that he and the deceased girl ate dinner together. Appellant was not at the table, but was ironing a dress for her little girl to wear to a social function later in the day and during that evening. While Lea and the child were at the table Lea called for coffee. Appellant took from the kitchen to the table the coffee, and it seems to have been poured out by Lea into two cups, one for himself and one for the child. There may be some issue as to whether appellant or Lea poured out the coffee, but as I understand the record Lea poured it out for himself and the little girl. Lea took one of the cups of coffee and the little girl the other cup. The little girl drank her coffee, but Lea did not drink his, but called for tea. Appellant brought him the tea, which he drank. Lea also did the carving and serving at the table for the two, and he and the little girl being those at the table. Immediately after drinking his tea he got up, excused himself, and went away hurriedly, stating he had a business affair that called for his immediate attention. The little girl went out to play and shortly afterwards came in complaining of being very sick at her stomach. The evidence clearly shows that Lea had made, before the above mentioned occurrences, indecent proposals to appellant, which she indignantly spurned. After the death of her child he again approached her on more than one occasion. These matters she again emphatically declined. These matters occurred several times, and accompanying her declinations he made statements to the effect that she would regret it and that he could be of great service to her, etc. This is some of the evidence for defendant's side of the case. She took the stand and emphatically denied poisoning her child. The State further introduced evidence to the effect that the little girl when angry with her mother, *Page 428 or her mother had declined to let her have her way about things, stated on one or more occasions that appellant had killed her father, Captain Orner, and that appellant knew that she, the child, knew that fact. The father died some years previously. This seems to have been introduced by the State and relied upon as a motive against appellant and over her objections. The State further introduced facts, circumstances and details of the sickness as well as many other matters which resulted in the death of Captain Orner. Without burdening this opinion with these occurrences, it is sufficient to say that the State introduced all facts connected with the sickness of Captain Orner and the doctor's visit and his refusal to return when called by appellant over the telephone several times to the bedside of her sick husband, and that another party also called the physician, who finally came, but too late. This covers several pages of the record. Captain Orner had died before the physician reached the house. He made an autopsy of the body and discovered no evidence of poison. He was buried, and five years later his body was exhumed, and a portion of the liver and stomach were taken as a basis for chemical analysis, the result of which was the chemist stated that this analysis indicated the presence of arsenic enough to have produced death. All details of this whole matter were gone into from the time of his sickness until the exhuming of the body, and all facts in minute detail connected therewith, and it covers a great portion of this record. It would be fully difficult to ascertain from the testimony whether the State was prosecuting appellant for the death of the husband or that of the child. The trial court admitted, and the majority of this court sustained the regularity of this matter on the theory that it showed motive. It would be more than doubtful if appellant had been on trial under an indictment charging her with the death of her husband that the State would have had sufficient evidence to have asked the jury for a conviction. So the whole thing amounted to a full trial of appellant for the killing of her husband as a preliminary motive for the killing of the child. There was an attempt also to prove that two of her young children had died suddenly, one in Arizona, and the other in Minnesota. The State also placed testimony into the case or sought to do so that appellant had gone to some point in Kansas in answer to an advertisement, apparently of marriage, and the man who did the advertising also died suddenly. Defendant had to meet all these things either by objection or testimony. Her two children died, one from what the physicians termed "summer complaint," and the other from pneumonia. What the Kansas City man died with is not established. This going there to meet this man she denied, but all these matters in one way or another were brought to the attention of the jury. Some were excluded, it is true. In other words, briefly summed up, the State sought to try appellant on the theory that she had a confirmed mania for killing people by poison, and especially arsenic poison.
That the State may introduce evidence to show motive does not authorize the going into the trial of another case or other cases. If *Page 429 there was a motive which prompted the accused to kill or do a certain thing, evidence of that motive may be introduced if it tends to solve the action of the defendant in doing the act then under investigation. For instance, the State could show that appellant killed her child by poisoning, if the testimony was at hand, for fear she might divulge something that could incriminate her in the death of the husband or ill-will towards the child. A motive for a homicide is legitimate testimony, but it can not be held for this reason that the State can turn aside from trying the main case to try another homicide in all of its details and circumstances. If the State should be permitted to do so the accused would have the right to meet all these facts and circumstances by the best testimony available. This is so well settled it is not a question now to be debated. It is the universal rule that where one side puts in a fact damaging to the other side, that that party may meet this fact by any testimony within its power. It is not clear to the mind of the writer but what the State prosecuted appellant in this case with equal vigor, if not with more determination, for the death of Captain Orner than that of the child. Appellant received life imprisonment in the penitentiary on what the writer believes to be anything but a clear case of circumstantial evidence. The jury went out to find a verdict with full details of both homicide cases before them. There can be no question in the mind of the writer, under the authorities in this State, that this was clearly erroneous. It has been the subject of numerous decisions, none of which are overruled. I might refer to the cases of Menefee v. State, 67 Tex.Crim. Rep., 149 S.W. Rep., 138; Chandler v. State, 60 Tex.Crim. Rep.; Ware v. State,36 Tex. Crim. 597; Pace v. State, 58 Tex.Crim. Rep..
In the Menefee case, supra, this question was one of the most serious in the case, and it was one of the grounds upon which the judgment was reversed. It may be a serious question even that the statement of the little girl was admissible, but what I have said has been on the theory that such statement was admissible. But what I have said is further based on the theory that the statement of the child was made to or in the hearing of her mother and charged her with the killing of her deceased husband. This was all denied on the trial. It will be noticed in the statement of the child that nowhere does it include the idea that Captain Orner died from poison. All she stated was that appellant knew that she, the child, knew that appellant had killed her father. These other circumstances with reference to the sickness and manner of death, the exhuming of the body five years later, and all these matters, were injected into the case in order to show that he died from poison, and this was engrafted into the statement of the child not as a fact but a presumption only. It seems to me it was one presumption based upon another presumption, and should not have been permitted. The whole matter seems to be but presumptions upon presumptions. The little child was very small at the time of the death of Captain Orner, she being only about ten years of age at the time of her death. It was sought to prove, and was gotten before the jury, *Page 430 but which was partly excluded by the court, that prosecutrix had a system or general plan of killing people by poison. This was all woven into the trial and its effect evidently remained. There is much of this in the record; so much so it could not have been otherwise than very injurious to appellant. This of itself should have been held sufficient error to reverse. It was not admissible testimony, and the State now seeks to avoid the consequences by urging to this court, and was sustained by the majority of the court, that it was excluded from the jury. There was testimony also with reference to the fact that two of appellant's children had died suddenly, one in Minnesota and the other in Arizona. These are mentioned simply to show how the prosecution was conducted. These children did not die from poison. This manner of trying a case is violative of the rules of evidence and fairness, and should not have been permitted. Just what effect it had upon the jury would be somewhat speculative, but the verdict indicates it, for she received the life sentence. All this evidence may have been and doubtless was the turning point against appellant, resulting in her conviction. It has been so often decided in Texas that guilt can not be imputed to a defendant by proving that other offenses were committed by somebody in a similar manner to the one for which the accused is being tried or that the other offense having been committed by the accused, therefore this case was. It is deemed unnecessary to cite authorities. Sometimes extraneous crimes are admissible to show intent, to connect the defendant with the offense on trial, show system, res gestae and matters of that sort, but nowhere, so far as the writer is informed, has it been held the State can prove that because an offense was committed at some time and place under similar circumstances to the one on trial that the State can introduce those facts or that case and attendant circumstances to show thereby or draw the conclusion therefrom that the accused may have committed the other offense, therefore he committed this offense. There are many reasons why this can not be done. One of the most familiar I may state is that it is a turning aside to try other offenses which involve the guilt or innocence of the accused, not in this case but in the other case, and that by being guilty of the other offense, therefore, she might be guilty of the offense for which she is being tried. There is also another, that is, the State or defendant will not be permitted to turn aside and try another case in detail, even on the question of motive or for any other reason. See cases already cited.
There was also evidence permitted to go to the jury which the writer thinks inadmissible, to the effect that appellant made a statement to one of the witnesses that she knew a secret poison which would kill, but which could not be detected in the body. Various objections were urged to this in the light of the record which the writer thinks ought to have been sustained. The little girl was poisoned by means of arsenic, the easiest of all poisons detected in the body of a deceased person. It was following out the general line of introducing facts that ought not to have been introduced to influence the jury in regard to their verdict. *Page 431 In other words, it is the purpose of the writer to say that appellant was entiled to a fair trial on legitimate testimony, and it would be difficult to find a case where a judge should be more careful in the admission of illegal testimony and guarding the rights of the accused than is presented by the record in this case. An innocent ten-year-old child alleged to have been killed by her mother by administering arsenic as a poison was and is of itself a serious charge and one likely to affect the jury at the beginning and before testimony was introduced. But all these other matters, the details of the life of the accused, the details of other supposed offenses, and the impressions sought to be made upon the jury that she was an arsenic fiend, and that it was her business in life to thus kill people, and especially by poisoning with arsenic, and those nearest and closest to her, was permitted to go to the jury as evidence. It would be useless to answer this from the standpoint of human nature. There is evidence also that appellant was thought to be insane, and that she was tried in the County Court under a charge of insanity after the death of her child, and was prosecuted there on that issue by State's counsel. If all these matters introduced were introduced in the County Court I might express a little surprise that the jury did not find her insane.
There are other questions that are, in my judgment, reversible, but I do not purpose to go further into these matters. I believe and am firmly convinced this judgment ought not to have been affirmed. Appellant was entitled to at least a fair trial, and this case especially called for extreme caution because of the condition of things that environed this case on the trial. I, therefore, respectfully dissent.