It was not error to admit in evidence against the defendant the indictments and record mentioned in defendant’s bill of exception. This testimony was admissible to show motive for the commission of the murder, and to this purpose the testimony was restricted by the charge of the court. Willson’s Crim. Stats., sec. 1044.
It is charged in the indictment that the murder was committed by means of poison mingled with water in a bucket. Over objections made by defendant, testimony was admitted tending to show that poison was at the same time mingled with coffee in a kettle, and that deceased also partook of the coffee, and that it was the poison in the coffee that caused her death. The court, with reference to this evidence, instructed the jury, in effect, that if deceased died from poison it was immaterial whether the poison was administered to her in water contained in a bucket or in coffee contained in a kettle. We are of the opinion that the court did not err in admitting said testimony or in giving said instruction. This is an instance in which proof of the substance of the issue only is required. The substance of the issue here is, was the death of the deceased caused by administering poison to her? It is immaterial how the poison was administered, whether in water, coffee, or in any other manner. The manner of its administration is not descriptive of the offense, and need not be proved strictly as alleged in the indictment. Douglass v. The State, 26 Texas Ct. App., 109, and authorities there cited.
On the trial the defendant offered to prove by a witness that immediately before defendant and Jeff Wood went to .the house of deceased on the evening when the poisoning is alleged to have occurred, said Wood requested defendant to go there with him, and that defendant after some hesitation went in the direction of said house with said Wood. Upon objection made thereto by the State, this proposed testimony was rejected. We think the court erred in this ruling. It was the theory of the State that said Wood and. the defendant conspired together to poison the brother, of deceased; that they went to the house of deceased for that purpose, and acted together in placing the poison in the water and coffee. It was *153important for the defendant to show that he went to the house with Wood for an innocent purpose, and not in pursuance of a conspiracy with Wood to commit murder. He was called upon by the evidence adduced against him to explain his presence at the house of deceased. That he was. induced by Wood to go there merely as company for Wood would be a circumstance tending to show that he went with an innocent intention, and tending to explain consistently with his innocence his presence at the house with Wood. Wood’s request to him to goto the house and defendant’s conduct in response to such request were res gestee of the act of his going, and admissible evidence to explain the motive which actuated him in going. Whart. Crim. Ev., 9 ed., secs. 753, 691; 7 Am. and Eng. Enc. of Law, p. 52. We think the error committed by the rejection of said testimony is sufficiently disclosed by the bill of exception to demand our consideration, although the bill is not as full and specific as it might have been made.
There is no direct evidence that poison was administered to the deceased. To establish that the death of deceased was produced by poison the State relies wholly upon circumstantial evidence. It is well settled that the cause of death maybe proved by circumstantial evidence and without the aid of expert testimony. Smith v. The State, 43 Texas, 643; Lovelady v. The State, 14 Texas Ct. App., 545; Powell v. The State, 13 Texas Ct. App., 244. It was not essential to a conviction that a chemical analysis of the stomach of the deceased should have been made in order to ascertain whether or not death was caused by poison if death by poison was clearly and satisfactorily proved by other evidence. It was not error therefore to refuse to give defendant’s requested charge Ho. 2.
We find in the record a bill of exception to the fifth paragraph of the charge of the court, which paragraph is as follows: “If you believe from the evidence that the defendant, acting either alone or in concert with .Jeff Wood, did not poison Elizabeth Rucker as explained in paragraph three, or if you believe that deceased was poisoned by accident or by her own voluntary act, or if you believe that deceased died from natural causes, or if you believe that deceased was poisoned by some other person than the defendant, acting alone or in connection with Jeff Wood, then yon will find the defendant not guilty.” We think the paragraph is subject to the exception that it requires the jury to believe from the evidence the existence of the conditions which entitled him to acquittal. It virtually requires the jury to believe from the evidence that he is innocent before finding him not guilty, whereas the correct rule is that the jury must presume his innocence until his guilt has been established by the evidence beyond a reasonable doubt. If the jury entertained a reasonable doubt upon the whole evidence of the defendant’s guilt, it was their duty to acquit him, although they might not believe from the evidence the existence of the facts and conditions, or any of them, mentioned in said para*154graph. It is true that in concluding his charge the learned judge gave the usual instruction as to the presumption of innocence and as to reasonable doubt, and ordinarily such instruction is sufficient, but in this case we do not think it was sufficient to correct and counteract the error in paragraph five. Said paragraph would have been unobjectionable if it had merely instructed that if the defendant, either alone or in concert with Wood, did not poison the deceased, or if deceased was poisoned by accident, or if she poisoned herself, or if she died from natural causes, or was poisoned by some other person than the defendant or the defendant and Wood acting together, defendant would not be guilty. The vice of the paragraph is in requiring the jury to believe from the evidence that some one of said conditions existed in order to warrant a verdict of acquittal because thereof. Moore v. The State, 28 Texas Ct. App., 377, and cases therein cited.
Without determining the sufficiency of the evidence, for the errors we have specified the judgment is reversed and the cause is remanded.
Reversed and remanded.
Judges all present and concurring.