Appellant chiefly complains in this motion that we erred in our original opinion in holding the indictment sufficient, and he again insists that we were wrong in not following the case of Sanders v. State, 54 Tex.Crim. Rep.. We are not in accord with the position in that case as to the sufficiency of the indictment, and in so far as same holds the indictment insufficient it is overruled. We are in accord with those parts of the opinion which assert that if the party furnishing the poison to a suicide, knowing the purpose of said suicide, and the party himself gives the medicine or poison by placing it in the mouth or other portion of the body of said suicide, which would lead to destruction of life, then it would be the criminal act of the party giving and he would not be permitted to defend against the result of such act; also we are in accord with the statements in said opinion that if a party, *Page 486 knowing the purpose of another to destroy her own life, at her request, prepared the medicine and himself placed it in her mouth and she swallowed it, then this would be an administration of such poison and the party giving it would be punished in case of death as a murderer. We observe that if proof of such facts would make out the State's cause, it would follow that the allegation need not go beyond the proof needful. It is not required by any of the authorities that more be alleged than is necessary to prove. Referring to the Sanders case, supra, could it be said that if the indictment had charged that Sanders with malice aforethought, intending to kill Pearl Baxter at her request, prepared certain poison, to-wit: carbolic acid, and at her request placed same in her mouth and same was then and there swallowed by her, from the effects of which she did then and there die, — that this would be to charge that the poison was administered by force, threats or fraud or without the knowledge of said Pearl Baxter? The question answers itself in the negative. No case can be found which by any stretch of the imagination or ingenious argument could be made to hold this an allegation of force, and clearly it would not be of threats or fraud. But, we further say that if an allegation that the accused placed the poison in the mouth of deceased at her request, — could be construed into an allegation that this meant force, by how much more would an indictment allege force when it stated that he administered the poison and caused her to take it into her stomach, omitting any reference to her request.
In addition to the Sanders and Grace cases which were reviewed in our original opinion, appellant cites on this point in his motion Branch's Annotated P. C., Sec. 521; Hughes v. State, 19 S.W. Rep., 509; 13 Tex. 65; 176 S.W. Rep. 49, and 188 S.W. Rep. 49. We have examined each of these and find nothing in them except announcements of general principles, which we deem not contrary to our views as herein expressed.
It is urged that the indictment does not allege that the deceased came to her death from the poison administered to her, "within a year." The indictment alleges that appellant administered the poison on July 3, 1921, and that same caused the death of deceased on the 5th of July, 1921. This pleads the death of deceased within a year from the administration of the poison and follows in this regard the form laid down by Mr. Branch in his Annotated P. C., p. 1025.
Appellant argues at length, and ingeniously, that because the *Page 487 indictment herein contained four counts, each charging murder by poison, to all of which upon his original trial he pleaded not guilty, and that conviction was therein had upon the first count, he has been in jeopardy under the other counts, and the case having been carried to the Court of Criminal Appeals and there reversed under a former conviction, and being on trial after said reversal upon the first count of said original indictment, that jeopardy had attached in the case, of which fact judicial knowledge was had in the trial court and that appellant should have been freed from this prosecution for said reason. Had this matter been raised in the trial court the contention of appellant would have been properly overruled. No such doctrine obtains. We do not think it necessary to analyze the proposition at length. To so hold would introduce in our practice in this State a ruling destructive of the rights of the State to plead various counts charging various phases of a single transaction in one indictment, and in all such cases would free the accused where new trials had been granted or reversals had on appeal.
Appellant did not defend against the charge of poisoning his wife by the administration of arsenic, as alleged in the indictment, upon the theory that he did poison her but used phosphorus or some other poison. The fact that defensive testimony supports the proposition that appellant bought rat poison or some other kind of poison from a druggist in Hillsboro, could not be held, in the absence of any testimony showing or tending to show that appellant claimed to have given his wife some other character of poison than arsenic, to require the court to give the jury an affirmative charge relative to the administration of other poison. Appellant admitted on the witness stand that he gave his wife a dose of salts. In his confession he said he put arsenic in the salts and put it there with the intention of killing his wife. No traces of any other poison were found in the analysis of the contents of the wife's stomach after her death, than arsenic. In view of the extreme penalty of the law inflicted upon appellant we have given this case more than ordinary care and consideration, and find ourselves unable to believe that our former decision was not in accordance with the law properly applicable hereto.
The motion for rehearing will be overruled.
Overruled. *Page 488