Appellant is convicted of a felony; his punishment fixed at confinement in the penitentiary for a period of six years.
The offense is defined in Article 1077 of the Penal Code thus: "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, . . . . he shall be punished, etc."
The act relied on is that appellant put strychnine in a coffee-pot containing coffee-grounds with the intent to injure one, Coalson. The facts show that the appellant was the husband of a daughter of J.N. Coalson; that with his wife and baby he resided at the home of J.N. Coalson and wife; and that it was the custom of all members of the family to drink coffee at breakfast, but that at the noon meal J.N. Coalson alone had the habit of doing so. On the morning of the offense, breakfast was prepared by the wife of J.N. Coalson, coffee was made and several members of the family partook of it, all of the fluid being drained out of the pot and the grounds left therein pursuant to a custom known to the appellant of using them in the preparation of coffee for the use of J.N. Coalson at the noon meal. Before *Page 214 the noon meal was prepared, the poison was placed in the form of powder or crystals in the coffee-pot and became mixed with the coffee-grounds therein. While preparing the noon meal, Mrs. Coalson observed the substance and by reason thereof did not use the grounds nor the coffee-pot but prepared coffee in another vessel. The contents of the coffee-pot was analyzed and found to contain strychnine in poisonous quantity.
Appellant confessed that he had put the poison into the coffee-pot with the intent to kill J.N. Coalson.
Appellant testified as a witness and admitted that he made the confession but claimed that he did not speak the truth; that in fact, he did not commit the crime but that he was induced to make the confession by his desire to be re-united with his wife and child and his desire to relieve the anxiety of mind of J.N. Coalson who, at the time the confession was made, was in a very low state of health and was melancholy by reason of the occurrence and the fact that suspicion was directed against his wife. Evidence negativing an inducement or promise made to the appellant to secure the confession was introduced.
Appellant also testified that after the poisoning act described and before the noon hour, he recanted and sought to remove the poison but its presence was discovered by Mrs. Coalson while he was seeking an opportunity to carry his purpose into effect.
The theory is advanced that the verdict and judgment are unsupported by the evidence for the reason that the coffee-grounds with which the poison was mingled was neither food nor drink.
"The coffee bean is generally used in the preparation of a table beverage called `coffee,' made by using the parched and ground coffee beans in preparing an infusion with boiling water." (Century Dictionary).
The question whether the coffee-grounds in question can be classified as food or drink, within the meaning of the statute, is vital. The courts have considered the meaning of these terms as used in purefood statutes and other police regulations. See Cyc. of Law Proc. vol. 19, p. 1085; Words and Phrases, 2nd Series, p. 591; Commonwealth v. Pflaum, 236 Pa. 294; Jewett v. Smail, 105 N.W. Rep. 738; Armour v. State Dairy Commission, 123 N.W. Rep. 580; 25 L.R.A. (N.S.) 616. These decisions declare, in substance, that the term "food" includes every article used for food or drink by man.
"Any article used as food or drink by man, whether simple, mixed, or compound, including food adjuncts, such as condiments, spices, etc." (Webster's New International Dictionary, 844.)
In the instant case, the testimony is affirmative and undisputed that it was the custom in the Coalson family to use the grounds left from breakfast in preparing coffee for the noon meal. Other testimony was introduced to the effect that there remains in coffee-grounds after once used food value. The quantity of ground coffee compared with *Page 215 the water used would bear upon the strength of the grounds remaining. The custom of using the grounds a second time implies that they were adapted to the purpose. On the particular occasion, they were left in the coffee-pot preliminary to their use in the preparation of the the substance in the coffee-pot with which the poison was mixed was noon meal, pursuant to custom. Upon the facts before us, we think within the statute.
It is claimed that appellant's confession was not voluntary and that it should have been excluded. In his testimony he claimed that it was false and was induced by the promises and conduct of the Reverend Banks. Banks and appellant were members of the same church and the same lodge and attended the church conference together. At the time a divorce proceeding was pending, and Mr. Coalson was in a very low state of health. Appellant wanted the divorce suit abandoned and his wife and baby restored to him and a reconciliation with Mr. Coalson, and confided his desires to Banks. Appellant also testified that his confession was induced by a desire to restore the health of Coalson, to counteract the suspicion against Mrs. Coalson and effect the restoration of his wife and baby; that Banks told him his confession would result in his re-union with his wife and baby and that from his various conversations with Banks he felt confident that he had the assurance of Banks that all these results would follow the confession.
Banks said that appellant discussed his troubles, namely: his separation from his wife and baby and his estrangement with his father-in-law and the suspicion resting upon his mother-in-law, the low state of health of Mr. Coalson and asked the assistance of Banks, who replied that he would pray over the matter and that if he thought the appellant innocent he would help him in any way within his power; that subsequently he told appellant that he had prayed over the matter and decided he was guilty; that appellant said: "I done that," and said a knowledge of it would be a great relief to Mr. Coalson, who was in a dying condition; that the appellant expressed a desire to confess and that a meeting was arranged by Banks in which the confession was made in the presence of Coalson and others; and appellant afterwards expressed relief in getting the matter off his mind. Banks disclaimed ever promising to help in any way in court or to intercede in trying to get appellant's wife and baby back and declared that he offered no inducement to make the confession.
The confession was not evidence unless voluntary. Womack v. State, 16 Texas Crim. App., 188; Branch's Ann. Texas Penal Code, Sec. 66; Underhill's Crim. Evidence, Sec. 126. Whether appellant's testimony, standing alone, would have been sufficient to discredit the voluntary character of the confession is open to question. Rice v. State, 22 Texas Crim. App., 655; Branch's Ann. Tex. Penal Code, page 41. If, however, it be conceded that it was sufficient to produce this result, the denial of its truth by the witness Banks produces a conflict of evidence as to the existence of facts, and conceding the truth of Banks' testimony, *Page 216 appellant's confession was not induced by any promise. The solution of this conflict, under the practice prevailing in this state, was for the jury. The most that appellant might have demanded was that the jury be called upon to determine whether the confession was voluntary and to reject it if they did not believe it to be so. Johnson v. State, 49 Tex.Crim. Rep.; Underhill's Crim. Evidence, Sec. 126, note 16; Kennon v. State, 46 Tex.Crim. Rep.; Corpus Juris, Vol. 16, p. 1003, note 32. Considering the record as it is made and in view of the conflict of evidence, the court could not have been warranted in withholding the confession from the jury. No request was made to have the jury determine its character.
While the corpus delicti may not be proved by the extrajudicial confession alone, such confession may be used to aid in the proof. Jackson v. State, 29 Texas Crim. App., 464; Kugadt v. State, 38 Tex.Crim. Rep.; Gallegos v. State,49 Tex. Crim. 115; Lott v. State, 60 Tex.Crim. Rep.; Branch's Ann. Tex. Penal Code, page 1049. In the instant case, the corpus delicti was established by proof independent of the confession. Aside from the confession, the evidence warrants the conclusion that the poison was mixed with the coffee-grounds with criminal intent. This satisfied the law demanding proof of thecorpus delicti. The appellant's confession was available to identify him as the criminal agent. Sullivan v. State,40 Tex. Crim. 639; Gallegos v. State, 49 Tex.Crim. Rep.; Corpus Juris, Vol. 16, page 1003; Chapman v. Commonwealth, 112 S.W. Rep., 567; Wharton's Crim. Evidence, 10th Edition, Sec. 633.
The facts supporting the inference that crime was committed, that is, that strychnine was put in the coffee-grounds with intent to kill or injure, being uncontroverted and not dependent upon the confession, we are of the opinion that the court did not commit error warranting a reversal in refusing to instruct the jury "that the confession could not be taken into consideration in determining that the crime was committed." Lott v. State,60 Tex. Crim. 167; Southern v. State, 60 Tex. Crim. 579.
A continuance was sought because of the absence of two physicians who, according to the averments, would have testified that during the spring and fall of 1918 appellant "was suffering with a nervous disease which has affected his mind and mental capacity to such an extent as to render him wholly incapable of making an extrajudicial confession." The confession proved was made in September, 1919, the record revealing no continuance of the disorder or its existence at any time subsequent to the fall of 1918, nor that it prevailed at the time the confession was made, the action of the court complained of does not require or justify a reversal of the judgment. Wooten v. State,51 Tex. Crim. 428; Leache v. State, 22 Texas Crim. App., 279; Roberts v. State, 89 Tex.Crim. Rep., 231 S.W. Rep., 760.
Finding no reversible error, the judgment is affirmed.
Affirmed. *Page 217