Zoldoske v. State

PiNNEY, J. 1. It is earnestly contended by counsel for the defendant that in this case the corpus delicti, by which is meant the essential substance in law of the offense charged, has not been proved; that possession by the defendant of the deadly poison which clearly caused the death of Elia Maly has not been shown; that this is legally essential to a — 597 — conviction. A passage in Wills, Circ. Ev. 219, founded on the case of Reg. v. Graham, at the Carlisle assizes, but which is not found in any report within our reach, is cited. The author lays it down that “ the possession of poisonous matter by the party charged with the administration of it is. always an important fact, and where death has .been caused by poison of the same kind, and no satisfactory explanation of that fact (possession) is given or suggested by the sur-' rounding circumstances, a strong inference of guilt may be created against the accused; ” and he states in this connection that “ not only must it appear that the accused possessed the deadly agent, but it is indispensable to show that he had the opportunity of administering it.” He quotes, too, the language of Mr. Baron Bolee in Reg. v. Graham: “ There was also another question which was most important : it was whether the party who had the opportunity of administering poison, had poison to administer.” This may all be conceded, but it does not follow that the proof that the accused had possession of poison to administer must be direct and positive, or that she had it in her exclusive possession. The substance of the offense may be proved as well by circumstantial as by direct evidence, and it is enough to show that poison was immediately at hand, in the house in which she lived, in a cabinet usually unlocked in the parlor, and that she had knowledge of the fact; that it was within her easy and immediate reach. All this the evidence clearly tended to prove. The same learned author says that “ no universal and invariable rule can be laid down, and every case must depend on its own particular circumstances; and, as in all other cases, the corpus delicti must be proved by the best evidence which is capable of being adduced, and such ah amount and combination of relevant facts, whether direct or circumstantial, as establish the imputed guilt to a. moral certainty, and to the exclusion of every other reasonable hypothesis.” . — 598 — In Tawell's Case a similar question was presented, where it was contended that there ought to be positive proof of the mode of death, and that such a quantity of poison was found in the body of the deceased as would necessarily occasion death; but Mr. Earon Pakke told the jury that “ if the evidence satisfied them that the death was occasioned by poison, and that poison was administered by the prisoner,— if that is proved by circumstantial evidence, it is not necessary to give direct and positive proof what is the quantitj^ which would destroy life, nor is it necessary to prove that such a quantity was found in the body of the deceased, if the other facts lead you to the conclusion that the death was occasioned by poison, and that it was knowipgly administered by the prisoner. The only fact which the law requires to be proved by direct and positive evidence is the death of the party.” Wills, Oirc. Ev. 233, 234. And Loed Campbell, in Palmers' Case, said that “ it was not to be expected that witnesses should be called to state that they saw the deadly poison administered by the prisoner, or mixed up by the prisoner, openly before them. Circumstantial evidence as to that is all that can be reasonably expected; and if there were a series of circumstances leading to the conclusion- of guilt, a verdict of guilty might satisfactorily be pronounced.” Id. 235; Trials for Murder by Poisoning, 42, 43. We think it is clear that the evidence given was competent to establish the body or substance of the offense charged, and it appears to have been submitted with proper instructions to the jury. The verdict of the jury cannot be disturbed on the ground urged by counsel; and as there was evidence given from which the jury might fairly find the existence of every essential element of the crime with which the defendant was charged, and having found that she was guilty, their verdict cannot be set aside as contrary to the evidence. A discussion of the evidence would serve — 599 — no useful purpose. The evidence tends to show that the defendant was enamored of' Dr. Mitchell, and* was determined to secure him as a husband if possible, and that she regarded the deceased, Ella Maly, as a rival and an obstacle to her success. There was evidence from which the jury might well find a motive for the crime with which she was charged. , 2. The court charged the jury, upon the subject as to whether the strychnine poison which caused the death of Ella Maly was taken by her by accident, that “ it is proper for you to consider what the testimony shows of the death of Mrs. Mitchell in the early part of the year 1890. Does the evidence in this case convince you beyond reasonable doubt that she died of strychnine poison, and that the strychnine which killed her was not the nux vomica which Dr. Mitchell prescribed for her? ’ If it does not, then her death can have no bearing upon the question now under consideration, nor upon any other question in this case. But if you should determine the question just suggested in the affirmative, and should also be convinced beyond a reasonable doubt that at the time of Mrs. Mitchell’s death Dr. Mitchell’s family consisted of several members, of whom this defendant was one, and that none of the others were poisoned, the fact of her death may be considered by you in determining whether Ella Maly’s death was chargeable to accident or not. To convict, you must be convinced beyond a reasonable doubt that Ella Maly did not die from strychnine accidentally taken.” And this is assigned for error. The substance of this instruction is that if the jufy should believe, beyond a reasonable doubt, that the death of Mrs. Mitchell was caused in the early part of 1890 by strychnine poison, not the nux vomica prescribed by Dr. Mitchell, while the defendant was a member of the Mitchell family, and that none of the others of the family were poisoned, — 600 — then the fact of her death by that means might be considered by the jury in determining whether the death of Ella Maly was chargeable to accident or not. If they were not so convinced, then the death of Mrs. Mitchell could have no bearing upon this question, or any other in the case. That to convict they must be convinced beyond a reasonable doubt that Ella Maly did not die from strychnine accidentally taken. There is no testimony whatever in the case having the least tendency, in our judgment, to show that Ella Maly took the strychnine poison, of which she no doubt died, accidentally. The instruction, however, if material, is clearly correct. Counsel for defendant insists that the effect of such testimony should have been strictly limited to the question of motive and intent. The cases cited in support of this view hold only that such evidence is competent on this question. They are none of them cases of murder by poisoning, and they do not hold, or assume to decide, that in such a case such evidence, while it is proper evidence of motive and intent, may not be used, as it was in this case, to show that the deceased did not take the strychnine poison, of which she died, accidentally.. The correctness of the charge is abundantly sustained by many authorities, and we know of none to the contrary. Wills, Circ. Ev. 238, 239. In Queen v. Geering, 18 Law J. M. Cas. 215, the prisoner was indicted for the murder of her husband in September, and evidence was tendered by the prosecution of arsenic having been taken by the prisoner’s two sons, one of whom died in December, and the other in March subsequently, and also by a third son, who did not die. The prisoner lived in the house with her husband and sons. Proof was given, as in this case, of a similarity of symptoms in the four cases; but the testimony was objected to on the ground that the facts proposed to be proved took place subsequent to the death of the husband, and that the effect of the evi — 601 — dence was to show the commission of three distinct felonies, but it was conceded that the evidence would have been receivable had the deaths of the sons taken place previously to the death of the husband. PollooK, C. B., held that the evidence was receivable for the purpose of proving, first, that the death of the husband, whether felonious or not, was occasioned by arsenic; second, that the domestic history of the family during the period that the deaths occurred was receivable to show that during that time arsenic had been taken by four members of it, with a view to enable the jury to determine as to whether such taking was accidental or not; and Baron AldeesoN and Mr. Justice Taleoued concurred in this opinion. To the same effect is Reg. v, Cotton, 12 Cox, Crim. Cas. 400; Reg. v. Rodin, id. 630; Reg. v. Garner, 4 Fost. & F. 346; Reg. v. Heesom, 14 Cox, Crim. Cas. 40. The case last cited, as well as Comm. v. Robinson, 146. Mass. 571, and Hawes v. State, 88 Ala. 37, show that such testimony would be admissible on the question of criminal motive as well. But in this case no objection was made to the evidence. See, also, Rex v. Clews, 4 Car. & P. 221; People v. Stout, 4 Parker, Crim. R. 127, and cases cited. The effect of the proof was strictly limited, however, to the question whether Ella Maly took the poison of which she died, by accident. It was entirely proper for the court to submit to the jury the question, “Was Ella Maly’s death a natural death, or was it caused by strychnine poison?” There is no reason to contend that this was submitted as decisive of the entire case. Taken with the context, there is no reason to suppose that the jury were misled by it. The evidence does not afford any ground for thinking that Ella Maly committed suicide, and the instructions given on'that subject are not objectionable. The correctness and fairness of the charge are to be determined, not from a detached sentence or statement, but from its fair meaning and effect as a whole. — 602 — .It is objected that the trial judge in his charge singled out partial statements of facts, and did not embrace in his suggestions all of the facts bearing upon the questions, and that it was error to make suggestion of facts and circumstances which are prejudicial to the defendant, and at the same time omit to state facts which were in her favor; that the trial judge stated the claims of the state, but did not state those of the defense; that he told the jury that he was responsible for the evidence upon which they were to decide the case; that the weight of the evidence was wholly for them. In this connection he stated to the jury that the responsibility of determining what the evidence proves or fails to prove was wholly with them, and that he had carefully refrained from any attempt to restate it, lest in so doing he might unintentionally impress them with the belief that he had an opinion or conviction upon it. The only statements which the judge made of the claims of the state were two: (1) That the state claimed that Ella Maly was poisoned by strychnine; and (2) that in another part of the charge he said: “It is claimed by the state that nothing was eaten by Ella in Dr. Mitchell’s the night of January 8th, except what she partook of with the other guests, but that the defendant gave her some chocolate cream candies, of which she ate soon after leaving the house, and that one of these chocolate creams had within it the fatal dose of strychnine, and that within a short time after she had eaten what she did of them the fatal effects began to manifest themselves.” We do not think there was anything unfair or improper in this. It was a necessity that the judge should state in general terms the nature of the charge. In this connection he did not, nor did he elsewhere in his charge, attempt to sum up or restate the evidence, and his omission to state there was evidence that an analysis of the remainder of the candy found in Ella Maly’s pocket showed that they did not contain any poisonous — 603 — matter cannot afford any just ground for complaint. And so, too, of the fact that after the terrible agony and convulsions ensued of which she died, and while under the influence of chloroform and morphine, Ella Maly, although interrogated as to what she had eaten, made no answer, except to say, “ I hear you.” The trial judge did not express any opinion whatever upon the evidence, but expressly informed the. jury in the most pointed manner that the weight and effect of the evidence were wholly for them. If the defense had presented its claims in the form of instructions asked, there is no reason to doubt but that they would have received proper consideration; at least the defendant would have been in position to have assigned error for any improper refusal in this respect. The body of the charge is, in the main, in substance like that of Chief Justice Shaw in Comm. v. Webster, 5 Cush. 309, which, like this, depended almost entirely on circumstantial evidence; and in that case the jury were told, in substance, that in order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the accused, and incapable of any other reasonable hypothesis than that of his guilt; and it is assigned as error that in this case no such instruction was given. It would have been proper to have given such an instruction in this case, as well as some others which have been suggested; but the failure to give them, no request therefor having been made, is not error, where the question of the defendant’s guilt is fairly left to the jury, as in this case, upon the entire evidence. . At the close, of the charge the defense asked the court “ to further charge to the effect, under the statute, that no presumption arises against the defendant on account of no evidence having been produced by her.” The court said that was correct, and read to the jury sec. 4071, R. S., and asked defendant’s counsel if he desired any further instruc — 604 — tion upon this point, to which he replied, “ No, that is sufficient,” and no other instruction upon any point was aslced. It is not error, where the question of defendant’s guilt is fairly left to the jury upon the entire evidence, for the trial judge to omit to give unasked instructions proper in themselves, but not necessary in point of law, provided those given are correct. Knoll v. State, 55 Wis. 256, 257; Winn v. State, ante, p. 571. There was no error, we think, in the instructions given. We do not think that the instructions are open to objection as being argumentative, nor because the court presented separately and in their order the questions whether Ella Maly committed suicide, and whether her death was the result of accidental poisoning; indeed, it was proper that these questions should be separately considered in the light of all the evidence. Although the deceased had thirty-five or more convulsions before her death, her life was prolonged an unusual and even extraordinary length of time after the strychnine began to operate. It is in evidence by medical experts that the remedies administered arrested temporarily the action of the poison; that the chloroform gave out, and convulsions recurred. The evidence is certainly very satisfactory that Ella Maly died from strychnine poisoning. No one of the several able medical experts expressed the slightest doubt on the subject, but all concurred in this conclusion. It was left for the jury to determine whether, beyond a reasonable doubt, the death of Ella Maly was the result of strychnine poisoning, and there was abundant testimony to justify the jury in the conclusions at which they arrived that such was the cause of her death. 3. The matter of exclusion of other witnesses from the court room during the time any witness is testifying is entirely a matter of discretion, and not of right, and we do not think there is anything in the record to show that this discretion was not properly exercised. We do not think it was — 605 — error to permit tbe witness Mrs. Maly to state the apparent effect the administration of chloroform had upon her daughter Ella, or for the trial judge to make the remarks in relation to Mrs. Maly’s evidence on behalf of the state to which exception is taken. There is no reason to think that the defendant’s case was affected by them in the least. 4. There is no doubt but Dr. Haskell was competent to testify as an expert in respect to cases of strychnine poisoning. The case of Soquet v. State, 12 Wis. 659, follows the decision in Boyle v. State, 57 Wis. 479; and these cases go only to the extent that a medical witness who has had no experience, and has never seen a case of death by strangulation, or a case of strychnine poisoning, cannot be allowed to testify as an expert on such subjects, if his knowledge in respect thereto is derived entvrely from reading scientific or medical books. The decision in Soquet v. State goes upon grounds so clearly stated and so abundantly sustained by adjudicated cases both in England and America, that it is not necessary again to refer to the authorities, many of which are cited or stated in Boyle v. State, 57 Wis. 479. Text-books or scientific works cannot be read in evidence to the jury, and the rule cannot, be defeated or evaded by getting their contents before the jury by having a witness testify to what they contain. The subject has recently been considered in Waterman v. C. & N. W. R. Co., post, p. 618. The trial judge might well have been content with following the decision of this court, as it is his duty in all cases to do, without elaborately explaining his reasons for thinking it erroneous. It is a matter of taste, perhaps, in many cases, whether the trial judge shall publicly indulge in criticism of and dissent from the decisions of the supreme court, but in jury trials^ it is not only a manifest impropriety, but error, where they are material to the merits, as has been held in the case of Scott v. Clayton, 54 Wis. 499. It was error to strike out the testimony of Dr. Hask606 ell, prejudicial to the prosecution, but the defendant was not injuriously affected by it, or by any of the remarks or rulings of the trial judge relating to it, or the length of his examination. 5. Dr. Buck had testified as to the symptoms following the administration of strychnine in a general way quite fully, and on cross-examination he was asked, “ Can you conceive of such a thing as a young girl, twenty-three or twenty-four years old, withstanding thirty-five strychnine convulsions? ” And, on objection, th© court refused to allow the question to be answered, stating that if this special case was to be inquired of, it should be by hypothetical questions based upon the evidence. The question really called for Dr. Buck’s opinion, and, to be of any value, the facts upon which it was based should have been put before the jury. It did not appear that he had heard all the evidence material to this point, and we think the ruling of the court is not open to objection, even though the question was asked on cross-examination, his testimony on direct examination having been quite general. 6. The hypothetical question propounded to Dr. Bell-field did not contain a statement in detail of the minute particulars of proof, but did contain the general features of the case, and particularly of the post mortem appearances of the bo.dy, and what was found in it, and Dr. B. was asked his opinion as to the cause of death. The question was objected to on the ground that it did not contain a statement of all the facts. The doctor answered: “If no other information was furnished than appears, as to the post mortem appearances, and as .to what was found after, I should say strychnine poisoning ” was the cause; that the discovery of albumen in the urine would not change his opinion; that as the question states that the kidney was examined with both the eye and the microscope and found to be congested, but otherwise normal, that under such con — 607 — ditions the patient could not have! died of uraamic poisoning. Dr. B. was cross-examined at great length, not only in respect to the facts embraced in the hypothetical question, but in respect to facts claimed to have been omitted from it. We do not think the case is within the ruling relied on by the defense in Vosburg v. Putney, 80 Wis. 523, nor that there was omitted from the hypothetical question any fact absolutely essential to enable the doctor to form an intelligent opinion.. Tlie course and result of the cross-examination were such as to remove all ground for claiming that there,was material error in this ruling prejudicial to the defendant. The rule in relation to hypothetical questions is that, if the facts upon which the hypothesis is based fall, the answer falls also (Whart. Crim. Ev. § 418); that an expert cannot be asked as to an hypothesis having no foundation in the evidence in th¿ case, but may be asked his opinion of a similar case hypothetically stated; and it seems that counsel may assume the facts as they claim them to exist, if within the possible or probable range of the evidence. Sills v. Brown, 9 Car. & P. 601; Dexter v. Hall, 15 Wall. 26; Cowley v. People, 83 N. Y. 465, 470; Dilleber v. Home L. Ins. Co. 87 N. Y. 83; Harnett v. Garvey, 66 N. Y. 641; Guetig v. State, 66 Ind. 94; Lawson, Exp. Ev. 152, 153; Reg. Exp. Test. 64-68; Stearns v. Field, 90 N. Y. 640; Turnbull v. Richardson, 69 Mich. 413; Quinn v. Higgins, 63 Wis. 664. No doubt such a question may be so inadequately framed as to make it error to allow it, as in Vosburg v. Putney, 80 Wis. 523. We think this case is clearly distinguishable from Yosburg v. Putney, and that the record does not show any error in the ruling of the circuit court on this question of which the defendant complains. 7. It is assigned for error that the court refused to permit Lilly Maly to be asked, on cross-examination, “Will you explain to the jury why you changed your testimony? ” — 608 — On the examination of this witness at the coroner's inquest it is claimed she stated that when she and her sister were on their way home from Dr. Mitchell’s on the evening in question, and while eating the chocolate creams, she remarked that they tasted kind of bitter, and at the preliminary examination she testified that it was her sister Ella who made this remark. This ruling was, we think,- erroneous, but its prejudicial effect was entirely obviated by the fact that immediately afterwards she was fully interrogated by the defense, and gave a full explanation of the discrepancy in her evidence on these occasions. The same answer must be made to the ruling of the court in refusing to allow Miss McOlaren, on cross-examination, to answer the question why she omitted to testify in respect to a particular fact at the preliminary examination included in her evidence on the trial.. Upon further cross-examination by the defense the witness gave a full explanation of the omission. 8. It is assigned as error that the trial judge, after the verdict of the jury had been rendered, and on the same day, before a motion for a new trial had been filed, expressed his opinion of the verdict and merits of the case to a newspaper correspondent, to the effect, among other things, that he was firmly convinced that the evidence warranted a conviction for murder in the first degree, or else he would at once entertain (this was on Sunday) a motion for a new trial; that he was doubtful whether, inasmuch as the defendant was a woman, sympathy might not operate to produce a verdict of not guilty. The statement was revised by the judge, and was published before the motion was heard, and it was made one of the grounds for a new trial. It is urged that expressing an opinion on the guilt of the defendant, and in effect deciding the merits of the motion before it was presented and heard, was an infringement of the rule that provides for hearing and deliberation before determination; and the case of Ohms v. State, — 609 — 49 Wis. 415, is relied on. The opinion thus expressed by the trial judge was founded, we must assume, upon the evidence developed at the trial, and it is difficult to understand how he could have hearchit without forming his own conclusions as to the guilt or innocence of the accused, or how he was legally disqualified from lawfully hearing and deciding the motion for a new trial, simply because he had expressed his convictions thus formed. It was competent for him to decline to hear argument in support of the motion, and overrule it. He, however, heard the motion, and denied it. "We do not think the rights of the defendant, as secured by the law, were infringed. The accused has no more right to complain of what occurred than if the trial judge, refraining from expressing any opinion, had overruled the motion, refusing, as he might properly have done, to hear any argument upon it. "What the law requires is that the motion shall be heard by the judge who presided at the trial, and this is the rule of Ohms v. State, supra, as explained in Schuster v. State, 80 Wis. 121. Many other points were assigned for error, but not insisted upon at the argument. We have examined them in connection with the bill of exceptions, and do not think any of them merit particular discussion. The defendant has been faithfully, zealously, and ably defended, and in the trial and proceedings resulting in her conviction of this great crime we are satisfied that no error has intervened to her prejudice, and that the judgment of the circuit court must be affirmed. By the Court.— The judgment of the circuit court is affirmed.