delivered the opinion of the court:
The evidence discloses that the plaintiff in error, Orville S. Burnett, whom we will refer to hereafter as defendant, a married man about twenty-eight years of age, living with his wife, was a practicing dentist, with an office in the city of Chicago; that he had resided there some two or three years, and that his family relation was pleasant. The deceased, Charlotte S. Nichol, was a married woman living with her husband and three children, residing about three blocks distant from defendant’s residence and place of business. About the third of September, 1901, defendant became acquainted with the deceased, Mrs. Nichol, in a drug-store under his office. At that time Mrs. Nichol was with a woman called Kirby Smith, from some place in Tennessee. The defendant and the two women casually met in this store, and, without anybody to introduce them, formed an acquaintance. Between that time and the 20th of October,—the date of the death of Mrs. Nichol and of the alleg-ed crime of the defendant,—the defendant and Mrs. Nichol were very frequently together,—sometimes accompanied by Kirby Smith, on1 which occasions they went to theaters, saloons, luncheons and dinners, and at other times visiting the house of Mrs. Nichol, accompanied by a man named Adams, and one time, at least, upon the invitation of the husband of Mrs. Nichol, visited the home of the latter and took dinner there. The evidence shows that on the night of Wednesday, the 17th of October, the defendant and Mrs. Nichol spent the night together at the Marlborough Hotel. The husband of Mrs. Nichol was holding some official position with a railroad company and had formerly lived in Tennessee. Shortly prior to Mrs. Nichol’s death her husband had been promoted to a higher position with the railroad company, which necessitated his return to Nashville to reside. This change of residence was very distasteful to Mrs. Nichol, as it appeared that her home life in Tennessee, where she had formerly resided with relatives of her husband, bad been made unpleasant, and also for the further reason that during her brief acquaintance with defendant she'had formed a violent attachment for him and was very loath to leave him. When Mrs. Nichol was apprised that it was necessary for her to change her residence it seems that the idea of suicide at once entered her mind, and on the Wednesday evening preceding her death, being the same day she learned of the proposed change, she sought the defendant, went to saloons with him, drank with him, spent the night at the Marlborough, as above stated, and during that night constantly talked about committing suicide, stating that she had sufficient chloral to accomplish that end. The defendant advised her against pursuing this course, pointing out to her the absurdity of doing so. The following Saturday evening,—the night of her death,—defendant again met her about six o’clock, and from that time until one or two o’clock the following morning, in the company of each other, they were in a number of saloons, each drinking quite heavily and each taking whisky. During the evening Mrs. Nichol was continually talking about committing suicide, stating that she would not go back to Nashville under any circumstances, and informed the defendant that she had determined to commit suicide, stating she had in her pocket-book two phials of morphine, and solicited the defendant a number of times to commit suicide with her, which he refused to do. About two o’clock on Saturday morning they arrived at the Marlborough Hotel, where they secured a room together for the night. When they arrived there, defendant, Burnett, was quite drunk, but Mrs. Nichol did not seem to be drunk but in the possession of her senses. A short time after entering the room Burnett went across the street to a drug-store and purchased a phial of morphine containing twenty-five quarter-grain tablets, which he brought to the room, opened and set upon the dresser, and at which time he states there were two similar phials standing upon the same dresser. When he returned the deceased was undressed, being simply-in a night-robe, and lying on the bed and seemingly very happy. She requested some paper and an envelope, which defendant rang for and which were brought. The sheet of paper and envelope were delivered to Mrs. Nichol as she lay in bed, in the presence of the maid who brought them. Mrs. Nichol at once began writing upon the paper handed to her. When defendant opened the phial of morphine purchased by himself, it overturned, and a portion of its contents,—about half,— spilled on the floor. Defendant then undressed and retired, and went to sleep without taking any of the morphine. Some time the next day, when he awoke, he found that Mrs. Nichol was lying by his side dead, and found a note written by her upon the dresser and over or against the empty morphine bottles, which was as follows:
“To whom it may concern—I did it because I loved him better than anything on earth, and he loved me, and we could not be separated. Good-by. . Charlotte.”
Upon discovering the death of Mrs. Nichol, defendant, horror stricken at the situation in which he found himself and believing that his life was ruined, arose, took the morphine remaining in the bottle purchased by himself, attempted to cut his throat or puncture his neck with a hat-pin, and turned on the gas and lay down. The proprietress of the house, detecting the gas, came to the door and was admitted by defendant. A doctor and the police were called at once. Restoratives were given to defendant, and about three hours later he was taken to the police station, where a statement was taken from him.
The statements of the defendant, Burnett, are substantially the only evidence in the case in any manner connecting him with the death of Mrs. Nichol. These statements began when the doctor arrived, and were concluded (there being several of them) about ten o’clock at night, in the police station. The portions of the statements or admissions chiefly relied on for conviction were to the effect that he had agreed with the deceased to commit suicide if she did. No witness heard any of the conversation between the parties. No witness saw anything done by either of them calculated to produce the death of the deceased, and outside of the statements of Dr. Burnett, the defendant, the only evidence was the fact of their being together in the place, the note found and the three empty morphine phials, and the testimony of the druggist that a man somewhat resembling the defendant purchased a phial of morphine during that night.
The first person to see the defendant, outside of the chambermaid and the landlady, who had no conversation with him and knew nothing about him outside of the fact that he was drunk when he came in the night before and that the paper was called for and given to the deceased, was Dr. Carter, a witness for the People, who arrived there at 3:30 P. M., and testifies that when he first saw defendant he was in a sort of dazed or stupefied condition, with the pupil slightly contracted, but that at that time the witness could not tell whether the defendant was suffering from the effect of the excessive use of liquor or the effect of morphine. To the doctor, upon his inquiry, the defendant stated that he and the woman had taken a room together there, and that sooner than go south with her family she had taken the suicide route, and called the doctor’s attention to the note which one of the maids of the hotel had found. When asked as to the cause of death" the defendant pointed to the dresser, where three empty morphine phials were, and stated that she had taken a quantity of morphine; that the defendant awoke some time during the afternoon and also attempted to commit suicide, calling attention to the scratch on his neck made by the hat-pin, and stated that he had'taken morphine and turned on the gas, and requested the witness to give him more morphine that lie might finish his undertaking". To the doctor he said nothing about any agreement between him and the deceased to commit suicide. The doctor stated that at the first visit he staid but a short time and returned in an hour, and found the pupil contracted and the patient in a semi-comatose condition. He stated that the effect of morphine was first promotive Of mind exhilaration, and secondarily resulting in stupor, and finally in death, unless checked. He stated also that he administered an emetic to the patient and tortured him to keep him awake, and directed the officer to use his club on the bottom of the defendant’s feet, as that was the best treatment to keep one from relapsing into sleep in case of morphine poison; that the primary effect of morphine lasted about four hours and the after-effect several hours, the exact time not stated; that he saw the defendant at six o’clock the last time, and that defendant was then tending towards stupor; that when he first talked to the defendant he was apparently rational, but any stimulant would give that impression at first; that the stimulus to the mind is the first effect, but in an hour, when witness became satisfied that defendant’s condition was due to morphine, he regarded him as not responsible for what he was saying.
Officer O’Brien seems to have been the next person in the order of those to see defendant. He stated that he arrived at the Marlborough about four o’clock, and that defendant was still lying in bed, opposite the body of Mrs. Nichol, and was not yet dressed, and that he stayed until six o’clock and assisted in taking him to the station; that defendant pointed out to him, while there, the drug store where he got the morphine, and that defendant also said that he and deceased agreed to commit suicide together before they came to the hotel that evening. This witness also testified that the defendant told him he tried to kill himself with his knife. The officer took the knife and it was introduced in evidence. To this officer nothing was said about the hat-pin. Describing the condition of the defendant and how he talked with him, the officer said that he was directed by the doctor to keep the defendant awake; that he put water on him, rubbed a big piece of ice steadily up and down his back for half an hour, pinched and slapped him, shook him, pulled his ears and did everything he could to keep him awake, and that the statements madé by the defendant were in answer to questions put by him.
Officer White, who assisted O ’Brien in taking the defendant to the station, testified that he arrived at the Marlborough about five o’clock, and that officer O’Brien was trying to put the defendant’s clothes on him when he arrived; that the defendant could not get up,—could not handle himself; that they had to dress him, and that the defendant made no statement while he was there; that they all tried to keep him awake, and that it took a full hour to dress him.
When the defendant was taken to the police station, officer Shaughnessy, connected with that station, was directed to take defendant’s statement, which he says he did, in writing. The written statement was not offered in evidence. Sidney M. Weil, a newspaper reporter, was present at the taking of that statement, and both were witnesses at the trial. While assisting with that statement, the defendant said that the deceased stated that she could not live in Nashville and could not bear to. leave the defendant, and that she was going to commit suicide, and asked him to commit suicide with her; that at first he did not like the idea, but finally assented; that she told him that she had enough morphine for herself but not enough for two, and that he went out and got a bottle of morphine and came in and set it on the dresser. In this statement the defendant detailed the trip of the deceased and himself the night of and preceding the tragedy, and as much as he .knew relative to it. The testimony of the witness Weil in regard to it covers some four or five pages, and the witness states that they were a full hour getting the statement; that the defendant was lying in bed when he and the officer went in to see him, and apparently a.sleep; that they aroused him and told him that they desired to take his statement; that it was necessary to shake him and wake him up or arouse him, and that they did shake him several times during' this conversation; that both Shaughnessy and the witness would shake him and then ask him more questions, and that after getting the thread of the story the defendant would doze off, his eyes would close, he would breathe heavily and the lids of his eyes would flutter; that it would take a second or two to arouse him at each time; that he was under a heavy drug of some kind; that the defendant volunteered nothing himself; that it was all solicited from him by questions, and he only made statements as questions were asked him, except in one or two instances. As to the condition of the defendant at that time both Weil and Shaughnessy agree, Shaughnessy stating that the defendant had to be aroused every fifteen or twenty seconds and seemed to be dazed and stupefied.
The next witness who testified was Charles P. Carpenter, who took a statement from the defendant about ten o’clock at night, when he was in his cell. This witness testifies that defendant was not asked by him the direct question whether he did agree with deceased to commit suicide, but be (witness) told him that the officers of the station were so reporting, and he asked him what about it, when the defendant said: “I suppose I said'it; I was drunk; I suppose I agreed; I suppose it was true.” As to the condition of the defendant at that time this witness says: “When I began talking to him he did not talk very freely; he seemed to be in a kind of stupor; he was all humped up in a chair and did not seem to pay any attention to surroundings; I put the questions to him and he would’ answer yes or no; did not go ahead and tell the story; he would affirm or deny a story; he never contradicted me in any of them; he seemed to assent to whatever I said; no difference what I said, he seemed to agree with me; I would make suggestions and he would assent; that is practically it.”
There is no evidence, either by the admissions of the defendant or any witness, that the deceased took any morphine in the presence of the defendant, or that he gave her any, or requested her to take any, or bought any for her. The evidence rather tends to show that while the defendant was gone to the drug-store to g-et the morphine that he purchased, the deceased took that which she had. In one of the alleged confessions or admissions the defendant said, “I drank considerable, and she had worked me up to such a state that I agreed to do anything with her.” The defendant testified in his own behalf and denied explicitly that he ever stated to Mrs. Nichol that he would kill himself if she did, but, on the contrary, he urged and counseled her against suicide; that the deceased insisted that she would commit suicide and had sufficient morphine in her pocket-book to accomplish that end, and further stated that she would never return to Nashville. Defendant denied that he saw her take any morphine or advised her to take any, and stated that he had no recollection whatever of being at the police station or making any statements or confessions or admissions that were offered in evidence against him, but did admit that he bought the morphine, but was unable to state why he did it. He swore that he took none of it until after he had discovered that Mrs. Nichol was dead, and then not in pursuance of an agreement, but because of his disgrace and humiliation.
The conviction of the defendant for murder in this case can only be sustained on the hypothesis that there was an agreement between him and Mrs. Nichol to commit suicide together, and that that agreement, in part, at least, was the inducing cause of the deceased taking the poison that produced her death. Upon the question whether, under the circumstances, suicide is a crime, we have a paucity of decisions. The general rule as stated by Wharton is: “If two persons encourage each other to commit suicide jointly, and one succeeds and the other fails in the attempt upon himself, he is a principal in the murder of the other.” (Wharton on Crim. Law, sec. 448.) There are a number of English cases that hold if two persons mutually agree to commit suicide and the means employed produce death upon one of the persons only, that the one surviving will be guilty of murder; but in all such cases the defendant was actually present and did some act furthering the commission of the suicide. Thus, in Regina v. Jessop, 10 Crim. Law Mag. 862, Jessop handed the bottle of laudanum to the deceased with the intention that the deceased should drink therefrom a sufficient quantity to cause death. In Regina v. Stormouth, Q. B. Div. 61 J. P. 729, there was an agreement to commit suicide between a man and a woman because of poverty. The agreement was mutual, and each purchased laudanum to carry out the agreement. The woman took the laudanum and died. The man took a portion but did not die, and left a note in the room where they both had been, stating that they had made such an agreement, and that the laudanum, taken by the woman had produced death but his had not proved fatal, so that other means must be resorted to. On the same day of the discovery of the death of the woman the man was arrested. In discussing the case the court said: “If there was an agreement, in consequence of which the woman destroyed herself, the prisoner was guilty, in the law, of murder; and the fact that that might have be"en only a pretended agreement on his part, or that he might have had some idea of not carrying out his part of the agreement, or have changed his mind, made no difference in law.”
In this State we have never had the question before us, and there are few cases decided by other' courts of this country. In Blackburn v. Ohio,
In Commonwealth v. Bowen,
The only other reported case that we know-of is that of Commonwealth v. Mink,
We are not disposed to go to the extent of holding, as was done in the Bowen case, supra, that suicide or self-destruction is a felony, but take the view that the later pronouncement of the Massachusetts court in the Minie ease, supra, and of the Ohio court in the Blackburn case, supra, more nearly announce the correct rule. By the English common law suicide was a felony, and the punishment for him who committed it was interment in the highway with a stake driven through the body, and the forfeiture of his lands, goods and chattels to the king. We adopted the English common law, and the acts of the British parliament in aid thereof, as it existed up to the fourth year of James I, which was the year 1606, as far as the same was applicable to our conditions and institutions and of a general nature; but as we have never had a forfeiture of goods or seen fit to define what character of burial our citizens shall enjoy, we have never regarded the English law as to suicide as applicable to the spirit of our institutions. In the view we entertain of the case at bar it is not necessary that suicide be held to be a crime. The charge against the plaintiff in error in both counts in the indictment is murder. In the first count he is charged with murdering Charlotte S. Nichol by administering poison to her, and in the second count with murdering her by hiring, persuading and procuring her to take poison, and we think proof of either one of these charges would warrant the conviction for murder.
The English common law, as applied to accessories before and at the fact, has become more a form than a substance under our law. Prom an early day we held that under our statute the accessory before and at the fact could be indicted as a principal; (Baxter v. People,
Counsel for plaintiff in error have ably and elaborately discussed the proposition that the second count is merely a charge against the plaintiff in error as an accessory, and that in order that there shall be an accessory there must be a-principal, and as under our law suicide is not a crime, the act of the deceased in killing herself was not a criminal act and there was no crime committed. But when we apply the principle above announced, that the act of the principal, when done pursuant to the will and direction of the accessory, is the act of the accessory, then it becomes immaterial what was the character of the crime committed by the principal or whether there was any crime, and in such case as this, where it is not shown or claimed that the accused directly administered the poison of which the deceased died, but that the taking of it was by his procurement, we should require strict proof of this-latter fact. Though the plaintiff in error may have known that the deceased intended to kill herself, and may have assented to it, or may have even wished that she would do so, still, unless the evidence shows, beyond a reasonable doubt, that he did or said something which aided, encourag-ed or induced deceased to kill herself, he cannot be held guilty of the charge of murder. (White v. People,
4. “The court instructs the jury that where a confession of the prisoner charged with a crime is offered in evidence, the whole of the confession so offered and testified to must be taken together, as well that part which makes in favor of the accused as that part which makes against him; and if the part of the statement which is in favor of the defendant is not disproved by other testimony in the case, and is not improbable or untrue, considered in connection with all the other testimony of the case, then that part of the statement is entitled to as much consideration from the jury as the parts which make against the defendant.
5. “The court instructs the jury that if they believe, from the evidence in this case, that the defendant, at the time he made the confession which has been given in evidence, was in a dazed and stupefied condition from the joint effect of intoxicating drink, morphine and the inhaling of illuminating gas, or from the effects of any one or any two of these agencies, and if the jury further believe, from the evidence, that the confession was elicited from the defendant by questions while he was in such condition, then such confession is entitled to very little weight, and the jury would not be justified in convicting the defendant upon said confession unless they find it is corroborated by other testimony in the case.”
No instruction was given with reference to the weight or character of the testimony, such as is referred to in the instructions and was the main reliance for conviction. The fifth instruction is defective, and we could not say that it was reversible error to refuse it, for that reason. But no objection can be raised as to the fourth, and as all the alleged admissions of the plaintiff in error that were offered in evidence were mere verbal admissions, none of them rising to the dignity of a confession, between which and admissions there is a well recognized distinction in the law, and as the admissions were drawn from the plaintiff in error by questions when in a condition that his mental status was doubtful, the jury should have been told by some instruction that they should be received with caution. (Marzen v. People,
Some fifteen witnesses were, over the objection óf plaintiff in error, allowed to testify as to the general reputation of the deceased, in the community in which she lived, for chastity. That question waá not an issue in the case. (5 Am. & Eng. Ency. of Law,—2d ed.— p: 872; Cannon v. People,
The judgment is reversed and the cause remanded to the criminal court of Cook county for further proceedings in harmony with this opinion.
Reversed and remanded.