84 Miss. 414 | Miss. | 1904
delivered the opinion of the court.
On tbe night of the 29th of November, 1902,Mrs. Annie Boyd died of acute gastritis. An autopsy disclosed the fact, according to the testimony of the analytical chemist, that her death was superinduced by arsenical poisoning. Appellant, the husband of the deceased, was indicted for her murder, and upon trial was convicted, sentenced to the penitentiary for life, and from that judgment prosecutes this appeal.
The testimony adduced at the trial was purely circumstantial. The theory upon which the prosecution proceeded was that the appellant had poisoned his wife through a desire to effect her death so that he might procure the proceeds of a policy of insurance on her life and continue an illicit intimacy with one Susan Artman. The following state of facts was developed by the testimony: Boyd was a candymaker, conducting a candy and fruit stand. His household consisted of himself, his wife, and one small child, and a cousin of his wife, a schoolgirl some sixteen years old, named Nora McDaniel. The family occupied rooms adjoining Boyd’s fruit stand. Artman and his wife, Susan, lived in an adjoining building, where the husband conducted a bakery. The rear premises of each house was in a yard common to both. Boyd and Susan Artman soon became friendly, and in constant conversation, Boyd devoting considerable attention to her, to the exclusion to some extent of his wife, though the testimony failed to positively disclose any criminality in this intimacy. Mrs. Boyd was much distressed, and brooded over this intimacy, and intimated on several occasions that she contemplated suicide. Nora McDaniel testified that when she returned from school on Monday'preceding the Saturday night on which Mrs. Boyd died she found Mrs. Boyd sick from nausea, vomiting incessantly, and seemingly in in
1. Nora McDaniel and the attending physician, Dr. Dampeer, were each permitted to relate in their testimony the statements made by Mrs. Boyd in reference to what caused her attack on the Monday preceding her death. They stated that Mrs. Boyd told them that, after eating a hearty dinner on Monday, she bad taken a dose of her dyspepsia medicine, the last dose in the bottle, and that shortly thereafter she bad been taken with nausea and cramps. This was error, plain and palpable. It is well settled that the statements of a party describing the symptoms of the suffering being endured at the time of the statements are admissible, but the testimony now being reviewed does not come within the scope of that rule. Mrs. Boyd was not stating the symptoms which she was then suffering, but was narrating a past transaction, was detailing the circumstances under which she began to expprience the suffering, and giving her opinion of the causes which produced her condition. This comes expressly within the condemnation of this court in Field v. State, 57 Miss., 474 (34 Am. Rep., 476), where the whole subject is lucidly treated.
2. The doctor who bad treated Mrs. Boyd produced before the jury several bottles, which, according to bis testimony, contained, accurately compounded, the different prescriptions which be bad given to Mrs. Boyd, and he was permitted to show the effect that Bough on Bats would have on the liquids in each of the bottles — changing the color of the various medicines in proportion to the amount of Bough on Bats mixed therewith. In connection with this evidence Nora McDaniel was permitted to testify that on the Sunday preceding the death Boyd, in accordance with his usual custom, brought bis wife at the breakfast table an orange; that on this occasion the orange bad been punctured, and that the juice which oozed out of the bole was of such a peculiar color that Mrs. Boyd refused it, and that witness also declined to eat it, and was allowed to give as her
3. The only evidence of poison discovered beyond that disclosed by the autopsy was found in a vial, which it was shown had originally contained the dyspepsia medicine, the last dose of which was taken on the Monday preceding the death, and which, according to the improperly admitted statement of Mrs. Boyd, was the cause of her first attack. This vial was kept on a shelf in the kitchen, to which room it was shown no one had access save Boyd, Mrs. Boyd, Nora McDaniel, and the Artmans. During the continuance of Mrs. Boyd’s illness, Nora McDaniel, at the request of the doctor, searched for this vial, but, being unable to find it, she was permitted to state that Mrs. Boyd told her where she (Mrs. Boyd) had placed the vial. She was further allowed to testify that the vial had been moved from the place; that she had not moved it; and that she after-wards found it on another shelf, surrounded and hidden by other bottles, still containing a small quantity of a clear liquid different in color from the original compound, and which it was shown contained arsenic. We are unable to comprehend upon what principle the court permitted the witness to repeat to the
4. To accentuate this improper testimony the state was granted an instruction, by which the jury Avere told that they should convict the defendant if they believed beyond a reasonable doubt that he himself mixed the poison, or “procured it to be done by another,” with the intent that it. should be taken by his wife, and it was so taken, and caused her death. The effect of this instruction was to say to the jury that, even though the evidence might fail to prove defendant’s direct connection with the crime, they should nevertheless convict if they believed that he had procured Susan Artman to mix this poison, yet the record is absolutely devoid of a semblance of proof that Susan Artman was in any manner implicated in administering the poison. This instruction injected into the minds of the jury the unsupported suggestion that appellant had procured in some unexplained manner some other person to administer poison to his wife. It presented to the jury two theories — one wholly unsupported by proof; the' other predicated entirely upon evidence purely circumstantial in its character.
6. The witness who testified that he had sold the Bough on Bats to appellant was permitted on the trial in the circuit court to state that he had testified to the same fact at the preliminary examination. This effort to corroborate the sole witness by whom it was shown that appellant had possession of poison by proving that he had testified to a similar statement upon a different occasion is so plainly erroneous as to scarce require citation of authority. It is never competent to attempt to corroborate a witness by proving affirmátively that ón other occasions he had made statements which harmonize with his testimony then related to the jury. The testimony is delivered under the sanctity of an oath, and carries such weight as the jury may attach to it. If intrinsically of doubtful worth or little force, proof that it is mere repetition increases neither its value nor its force. Wharton, Cr. Ev., par. 492; Williams v. State, 79 Miss., 555 (31 South., 197).
7. The'attending physician, over the objection of defendant, testified that on Saturday evening, a few hours before Mrs. Boyd’s death, she made to him a dying declaration, which was as follows, as the same appears in the record: “I told her she was very sick, and suffering from some poison, and she remarked, Wes, I am going to die.’ I told her her husband was under suspicion, and it was her duty to tell us if she had taken
After repeated and protracted examination of this record, after the testimony has been carefully scanned many times, we are unable to say that the appellant was granted that fair and impartial trial guaranteed by our law, and we are not able to affirm with confidence that the testimony erroneously admitted may not have contributed to the result. In cases of this character, where the Very atrocity of the crime is often of itself sufficient to array public sentiment against the unfortunate accused and place him almost beyond the pale of human sympathy, courts should be only the more scrupulously careful
Reversed and remanded.