delivered the opinion of the Court:
The trial of the defendants on an indictment for murder commenced on the 21st day of October, 1891, and on that day there was present a full panel of jurors drawn, as prescribed by statute, before the first day of the term of court. On the 22d day of October the regular panel of jurors was exhausted on account of challenges in the selection of a jury for the trial of the defendants, and the court ordered the clerk to draw the names of one hundred additional jurors from the jury box, returnable forthwith. The defendants excepted to the order, and upon the return of the venire for the jurors drawn, they entered a motion to quash the venire, claiming that the clerk had no authority, under the statute, to draw the jurors,—that when the regular panel has been exhausted, jurors should be summoned by the sheriff. The defendants also challenge the array of jurors so drawn. Upon two subsequent days, when the jurors so drawn had been exhausted, similar orders were entered, additional jurors drawn, and similar motions made and overruled.
Section 8, chapter 78, of our Revised Statutes, provides: “At least twenty days before the first day of any trial term of any of said courts, the clerk of such court shall repair to the office of the county clerk, and in the presence of such county clerk * * * draw from said box the names of a sufficient number of said persons, * * * not less than thirty for each two weeks that such court will probably be in session for the trial of common law cases, to constitute the petit jurors for the term.” Section 10 provides the manner in which the jurors so drawn shall be summoned. Section 12 provides as follows: “If for'any reason tlie panel of petit jurors shall not he full at the opening of such court or at any time during the term, the clerk of such court may again repair to the office of the county clerk and draw, in the same manner as at the first drawing, such number of jurors as the court shall direct, to fill such panel, who shall be summoned in the same manner as the others, and, if necessary, jurors may continue to be drawn and summoned from time to time until the panel shall be filled. Section thirteen provides, that “when, by reason of challenge in the selection of a jury for the trial of any cause, or by reason of the sudden sickness or absence of any juror for any cause, the regular panel shall be exhausted, the court may direct the sheriff to summon a sufficient number of persons having the qualifications of jurors, to fill the panel for the impending trial; but upon objection, by either party to The cause, to the sheriff summoning a sufficient number of persons to fill the panel, the court shall appoint a special bailiff to summon such persons.”
It is claimed on behalf of the People that the jury was properly selected under section 12, supra. It seems to be plain from the language of the section of the statute relied upon, if for any reason during the term of court the panel of jurors shall not be full, the clerk of the court may draw" such number of jurors as the court may direct, to fill the panel, and the jurors so drawn are required to be summoned by the sheriff. But in' the case under consideration the emergency which authorized the clerk to draw jurors had not arisen. Jurors had been excused from serving on the case on trial, but they were still members of the regular panel, attending court in the capacity in which they had originally been selected. The regular panel of jurors had not been depleted or diminished, but it was full. It therefore seems plain that a case had not arisen under which the clerk of the court was called upon to act under section 12 of the act. But on the'other hand, in the selection of a jury for the trial of the ease from the regular panel, on account of challenge of jurors, the regular panel was exhausted, and being exhausted, under section 13 it was the duty of the court to direct the sheriff to summon a sufficient number of persons having the qualifications of jurors, to fill the panel for the trial of the cause then on trial. The regular panel of jurors was in attendance, ready at any moment to serve as jurors when called upon. But they had been called as jurors in the pending case and found not qualified, and had been excused. The regular panel having in this way been exhausted, the statute then required the court to direct the sheriff to summon a sufficient 'number of persons having the qualifications of jurors, to fill the panel for the impending trial.
But while the action of the court was irregular and not in strict conformity to the statute, is the irregularity one which has injured the defendants, and one which should result in a reversal of the judgment ? It is not claimed that the jury selected in the mode it was selected was prejudiced against the defendants, or that they were not fair-minded men, and of sufficient intelligence to faithfully and intelligently discharge their duties as jurors, but, on the other hand, the jury seemed to be satisfactory to the defendants when taken. The defendants, in the selection of the jury, did not exhaust but a little more than one-half of their peremptory- challenges. No one of the jurors selected was forced upon the defendants, but they were all voluntarily accepted. Indeed the only complaint now made is, that the jury was not selected in the technical mode required by the statute, and for that reason, and that alone, the judgment should be reversed. We can not concur in that view. While the statute was not strictly followed in the selection of a jury, and the record fails to show that the rights of the defendants were impaired, or that defendants were in any manner prejudiced, we can not hold that the irregularity should result in a reversal .of the judgment. (Mapes v. The People,
It is next claimed that the court erred in allowing Dr. S. C. Gillett and Dr. C. L. Smith to testify as experts on the subject of arsenical poisoning. Dr. Gillett, as to his qualifications as an expert, testified that his profession was that of physician and surgeon; that he was a graduate of Eush Medical College of Chicago; that he had been a practicing physician in Aurora for thirty-four years, and that he was a licensed practitioner under the laws of the State of Illinois. An hypothetical question was then put to him by the prosecution, setting forth the symptoms of the deceased, and he was asked from what cause, in his opinion, the deceased came to his death. This was objected to by both of the defendants, on the ground, among others, that the witness did not properly qualify as an expert, which objection was overruled, the defendants excepting. The witness then testified, in substance: “If I found arsenic then I should expect he died from the effects of arsenic.” The testimony of the other witness did not differ materially from the evidence of Gillett, except that he had been in practice but twelve years.
It will be observed that the two witnesses were both graduates of medical colleges, and that they were engaged in general practice and had been for a number of years. Whether they had ever had any experience in a ease of poisoning in the practice does not appear from their examination. It is insisted that it devolved on the prosecution to show that the witnesses had, in their practice, had a ease of arsenical poisoning before they could testify. This is a question upon which the authorities are not entirely harmonious. In The State v. Terrell, 12 Rich. (S. C.) 321, on an indictment for murder produced by poison, the same objection was interposed to certain witnesses called by the prosecution as has been raised in this case, but the court held that medical witnesses, in giving their opinions as experts, are not confined to opinions derived from their own observation and experience, but may give opinions based upon information derived from the books. In Mitchell v. The State,
Counsel for plaintiffs in error have cited Tognet v. The State,
Boyd v. Stokes,
Emerson v. Lowell Gas Light Co.
Without, however, extending the discussion of the question any further, we are inclined to hold that the opinions of the witnesses, founded on their practice, were competent evidence. What weight, however, should be given to the evidence was a question for the jury. Moreover, in this case it is apparent that the defendants were not injured, in the least, by the admission of the evidence. The cause of the death of Edwin N. Kelchner was not a disputed question. Several physicianwho were conceded to be qualified to testify as experts, testified that in their opinion the deceased came to his death from the effects of arsenic. Dr. Bobbins, who assisted in the post mortem examination, testified to the condition of the stomach and other organs of the deceased, and Prof. Haines testified that he made a chemical analysis and found several grains of arsenic. The quantity of arsenic found in the system of the deceased was proven to be sufficient to kill several persons. No attempt was made on the trial to prove that the deceased came to his death from any other cause. The fact, therefore, that the deceased came to his death from arsenic was so clearly established by unimpeachable evidence, that the admission in evidence of the opinions of the two witnesses could have no prejudicial effect on the rights of the defendants, and we can not hold that its admission was error.
The next error relied upon is the admission in evidence of three certain letters written by Mrs. Kelchner, the wife of the deceased, to the defendant Siebert, which were found in Siebert’s room, in his bureau drawer, by Pinkerton, a detective. The introduction of the letters in evidence was objected to, on the ground that they were obtained by unlawful seizure, in violation of the rights of the defendant Siebert, and reliance is placed on the case of Boyd v. United States,
The deceased and his family, at the time of his death, were occupying a house belonging to Siebert. The latter also occupied rooms in the same house. Pinkerton, after Siebert’s arrest, conceived the plan of making an examination of Siebert’s rooms. He called at the house, and, by representing to Mrs. Kelchner that he was acting as her friend, gained admission to Siebert’s rooms. He found some of the bureau drawers locked, but obtained keys and opened the drawers, where he found the letters which he carried away. These are, in brief, the facts under which the letters were obtained.
It may be that these letters were obtained by the detective by artifice, and perhaps unlawfully. But however that may be, we do not find it necessary to enter upon an elaborate discussion of the admissibility of the evidence, as we have recently had occasion to go over the same question in Gindrat v. The People,
The next point relied upon by the defendants to reverse the judgment is, that the court erred in refusing to allow the defendants to prove that the deceased, at different times within a year of his death, and prior to his last sickness which resulted in his death, made threats that he intended to take his own life,—that he intended to commit suicide. It will be % observed that the declarations "offered as evidence were not a part of the res gestee, or accompanied by any act of the deceased which they might characterize or explain, but were mere naked declarations offered as original evidence. It is conceded in the argument, and fully established by the evidence that the deceased came to bis death from arsenical poisoning, and while it is true that it was a question for the jury to determine, from the evidence, whether the deceased came to his death from poison administered by the defendants, or administered by himself or some other person, yet that question was one which must, like all other issues involved in the trial of a legal proceeding, be settled by legal and competent evidence introduced by the respective parties.
Counsel for plaintiffs in error have cited some authorities which seem to sustain their position, but we think thé great weight of authority establishes the rule that such declarations are mere hearsay; and as such are not admissible.
Bishop, in his work on Criminal Procedure, (vol. 2, sec. 623,) after stating that the deceased is not a party to the prosecution and his utterances are hearsay, says: “The declarations of the deceased, as of any other third person, when not of the res gestee, or dying declarations, or communicated to the defendant so as possibly to influence his conduct, are excluded by rules which have been supposed to promote justice on the whole,—at all events, which have become parts of the common law, not within the discretion of the courts to set aside. Hence they are not admisáible.”
In Kennedy v. The People,
In The State v. Dart,
In The State v. Wood, 53 N. H. 484, where the defendant was charged with murder by producing an abortion it was proven that the deceased had visited the office of another physician, and the defendant then offered to prove the declarations of the deceased made on leaving the other doctor’s office. The court held the evidence- inadmissible, and in deciding the case said: “The evidence offered was the merest hearsay in the world. They were not dying declarations, nor were they connected with any fact that alone had any connection with the ease on trial. The case of Patten v. Ferguson et al. 18 N. H. 528, would seem to settle this question. The fact was of no importance standing alone, and the declaration, standing alone, was incompetent. When they are united the unimportant fact is used as a vehicle to introduce the incompetent declaration. * * The theory that such a declaration can be valid and made competent by connecting it with a fact utterly immaterial to the cause, does not need authorities to refute it.”
Commonwealth v. Felch,
The decision in Commonwealth v. Felch applies here. The offered evidence was mere hearsay, it was not a part of the res gestee; it was not a dying declaration; it accompanied no act of the deceased; it characterized no transaction, and we are aware of no well established principle upon which it was admissible.
We are reminded, however, that Commonwealth v. Felch, supra, has been overruled by the late ease of Commonwealth v. Trefethen, 31 N. E. R. 961. In that case the court held that the declaration of an unmarried woman pregnant with child, declaring her intention to commit suicide, made the day before her death, was admissible on the trial of one accused of her murder. This decision, although rendered by a court of high standing, we do not regard in harmony with the current of authority, and we are not inclined to follow it. If a declaration of that character was accompanied with any act tending to show an intent to commit suicide, it might be admissible in connection with the act. But no act was attempted to be proven. Indeed, the arsenic found in the stomach of the deceased was proven to have been administered to him within from two to four hours of his. death, at a time it was utterly impossible for the deceased to procure or- take the poison himself.
The case of Boyd v. The State, 14 Lea, (82 Tenn.) 161, has been cited and relied upon by counsel for defendants. What was said by the court in deciding the case would seem to sustain the position of counsel, but upon an 'examination of the case the question there involved will be found to differ so much from the question presented by this record, that the ease can not be regarded as an authority here. In that case there had not only been threats, but an actual attempt, to commit suicide, and the evidence which had been excluded by the trial court contained not only a threat but an act of the deceased to commit suicide. Whether a mere threat, unaccompanied with an act, was admissible as evidence, was not raised or decided by the court.
Blackburn v. The State,
Counsel for defendants have cited numerous cases where self-defense is relied upon to justify the homicide, on a trial under an indictment for murder, holding that the defendant may, under certain circumstances, show prior uncommunicated threats of the deceased against the defendant, and from those cases they seek to establish at least some analogy to the case under consideration. The doctrine of self-defense rests upon principles established to govern eases of homicide where self-defense is alone relied upon, and we are aware of no principle upon which it can be held that because certain evidence is admissible in those cases the same evidence would be admissible in a case of this character. In a case where self-defense is relied upon, the conduct of the defendant in respect to whether he used more force than was actually necessary is always an important inquiry, and communicated threats are admissible on account of the effect they may have had on the defendant’s mind, leading him to guard against or repel a .threatened attack; and uncommunicated threats may be proven, as held in Campbell v. The People,
■ It is also insisted that improper remarks were made by the State’s attorney in his closing argument to the jury, and upon this ground the judgment should be reversed. The remarks made by the State’s attorney to which objection has been made, were as follows: “You, gentlemen, as citizens of the county, frequently hear this said,—probably said it yourselves, as citizens of this country and county,:—that crime does go unpunished in this country.” We perceive no objection to this language. The State’s attorney had the undoubted right to call upon the jury to sustain the laws, and if it was a matter of notoriety in the community that crime went unpunished, we see no reason why that fact might not be spoken of in the argument.
The State’s attorney also referred to the fact that two poisoning cases occurred in the city of Aurora within the last five years, and said: “Those two cases occurred right in the vicinity, or one of them, where this woman lived. These people, I say, thought they could repeat that operation. They thought they could remove Kelchner by arsenic, just as these other people had done in Aurora, and they never be convicted of it. They thought you can not convict in arsenical poisoning cases. They thought, in the first place, they would get-him buried before anybody discovered what was the matter. They thought they could give him this arsenic and that he would die soon,—that he could be buried and they get him under the sod before it would be suspected. No doubt many cases have there been of that kind where deadly poisons have taken off the husband or wife. Secret murders of that kind have never come to light,—murders of that kind where the doctors did not diagnose the case right; and, gentlemen, in this ease it came very near being that way,” etc.
As a general rule the argument should be confined to the evidence, but by way of illustration known facts may be referred to in argument; and we perceive no reason why the State’s attorney might not insist, in argument, that the defendants thought they could remove the deceased by the use of arsenic, and cover up their crime and escape punishment, as others had done. Perhaps it may be true that some unguarded remark fell from the lips of the State’s attorney that was impiroper and should not have been made; but if that is the case, the judgment can not be reversed on that account. It is impossible to lay down any general rule in regard to what shall or shall not be said in an argument to the jury, but unless it is apparent that defendants have been injured by improper remarks, the judgment should not be reversed on that ground, alone.
It is next claimed that the court erred in the instructions to the jury. The first instruction complained of is No. 3, given for the People, and the objection made to the instruction is, that it singles out a particular portion of the evidence and directs the attention of the jury to it. Upon an examination of the instruction we do not think that the objection urged against it is tenable. It is clear, from the evidence, that the two defendants had for several years before the alleged crime been guilty of adultery, and it was proper that the jury should be instructed that the evidence of adultery was admissible, not for the mere purpose of establishing the fact Siebert had been-guilty of adultery with the wife of the deceased, but the proof of adultery was admissible on the question of motive. Thus far the court, in the instruction, called the attention of the jury to a particular portion of the evidence, which it was proper for the court to do.
.The fourth instruction states the law to the jury upon the question of principal and accessory. As an abstract proposition of law no fault is found with the instruction, but it is said there was no evidence upon which the instruction could be predicated, and upon this ground it is erroneous. "We are not able tó concur in this view. There was evidence introduced on the trial that might properly lead the jury to believe that one of the defendants administered the poison while the other stood by aiding and encouraging the act. The evidence tended to prove a desire on behalf of the defendants to get the deceased out of their way. As their declarations showed, to use the language of one of the defendants, they “wished he would get up and get out.” While the evidence was not direct and positive, yet there was evidence, and, as we think, enough to predicate the instruction upon.
Objection is also made to the sixth and seventh instructions. The two are quite similar. The sixth, in substance, directed the jury that it was not necessary to prove each link in the chain of circumstances relied upon, beyond a reasonable doubt, it being sufficient, taking the testimony altogether, that, the jury be satisfied, beyond a reasonable doubt, that defendants are guilty. The seventh, in substance, declared that it was not necessary to prove every fact beyond a reasonable doubt, if the jury, from all the evidence, believe, beyond a reasonable doubt, that the defendants are guilty. It will not be necessary to enter upon any extended discussion of the instructions, as the rule declared by them has been approved in Weaver v. The People,
Objection is made to the eighth instruction, which was as follows:
“The court instructs the jury that the defendants, William B. Siebert and Catharine Kelchner, having become witnesses in their own behalf, at once became the same as any other witnesses, and their credibility is to be tested by and subjected to the same tests as are legally applied to'any other witnesses; and in determining the degree of credibility that should be accorded to their testimony, the jury have the right to take into consideration the fact that they are interested in the result of the prosecution, as well as their demeanor and conduct upon the witness stand; and the jury are to take into consideration the fact, if such is the fact, that they have been contradicted by other witnesses. And the court further instructs the jury, that if, after considering all the evidence in the case, they find that the accused have willfully and corruptly testified falsely to any fact material to the issue in this cause, they have the right to entirely disregard their testimony, excepting in so far as their testimony is corroborated by other credible evidence or faqts and circumstances proven in evidence in the case.”
This instruction is fully sustained by Hirschman v. The People,
It is, however, said, that the instruction is condemned by Purdy v. The People,
It is also claimed that the court erred in refusing defendants’ sixth and ninth instructions. They, in substance, directed the jury not to consider the contents of a certain box and vial which had been offered in evidence. The vial contained the arsenic which Prof. Haines testified he had taken from the contents of the stomach of the deceased, and the box contained the “Bough on Mice” which Siebert purchased, and which was found in his Geneva saloon. The position of counsel is, that the offer w,as not broad enough. It is conceded that the vial and the box were offered in evidence, but it is said the contents were not formally offered in evidence, and hence could not be considered. The testimony fully explained to the jury what the box and vial contained, and the only object of offering in evidence the box and vial was to get the contents before the jury. Under all the facts, we think when the vial and box were admitted in evidence the contents also went in evidence.
It is next claimed that the verdict is against the weight of evidence. We shall not enter upon a critical analysis of the evidence, but content ourselves with a reference to a few of the leading facts.
It appears that Edwin H. Kelchner, the deceased, was a carpenter by trade, and for eight or nine years before his death worked for the Burlington Railroad Company at its shops in Aurora. It was his constant habit to leave his home at about half-past six in the morning, take his dinner pail, work until noon, eat his dinner at the shops, work until evening, and return home about half-past six. His family consisted of himself, his Wife, a son, Odelleon, aged seventeen years, a daughter, Minnie, aged twelve years, and a son, Bael-ue, aged six years. In the fall of 1888 Mrs. Kelchner met the defendant Siebert at his saloon, and the two soon became infatuated with each other. He became a frequent visitor at her house in the absence of her husband, and she frequently visited him at his rooms which he occupied, over his saloon. Siebert owned a house on the west side of the river, and he proposed to the Kelchners to move into his house and he would give them the rent for his board. In August, 1889, they moved into his house. Mrs. Kelchner occupied a bed-room down stairs. Kelchner occupied a bed-room in the back part of the house, up stairs, and Siebert occupied two front rooms up stairs, and boarded in the family. The affection between Siebert and the wife of the deceased seemed to grow from time to time. They were seen to kiss ea'eh other, and she was also seen sitting in Siebert’s lap. There were various other manifestations of their affection which it is not necessary to enumerate. At the same time the deceased seemed, from the evidence, to he an encumbrance which Siebert and Mrs. Kelehner desired to get out of their way. One witness testified she heard Siebert say he would give the deceased “$1000 for his woman if he would pack up and clear out.” The samé witness testified she heard Mrs. Kelehner say, “I wish the old fool was dead.” She kept her door locked, as the witness testified, and did not allow her husband to go into her room. At one time, she testified, “I heard him go down and knock at her door, and she told him to go along and mind his business.” She threatened to get a divorce from her husband. Siebert said, “If he don’t like the style why don’t he get up and get out ?” Mrs. Kelehner said, “I would think as much.” She also said, “Siebert was going to fix up the house in great style, but as long as Kelehner staid he never would do it. ” It was also proven that Siebert said, “He thought Mrs. Kelehner was a real nice woman. He was stuck on her, and expected she would be his wife in a year or two.”
The death of the deceased occurred on Thursday evening, October 9,1890. On Monday night of October 6, the deceased, his wife and three children, and Siebert, were the only persons who remained in the house occupied by the deceased, during the night. On Tuesday morning the deceased arose at the usual hour, prepared breakfast, and he and his son Dell ate alone. The deceased then put his dinner in the same dinner pail he always used. Dell put his dinner in the basket he usually carried, and the son left the house with his basket about half-past six o’clock. The deceased soon after left the house, with his dinner pail, for the shops, and commenced work at the usual hour. The men in the shops testify that he worked as usual until noon. At twelve o’clock he got his dinner pail, warmed his coffee, sat down with other men in the shop and ate his dinner. After dinner, as usual, he stepped out to get a drink of water. Within thirty minutes after eating he was taken very sick with extreme pain in the stomach and severe vomiting'. The vomiting continued, and the suffer•ing was so great that the men in the shop sent for his son, who procured a carriage and took him home. A doctor was summoned, who prepared a prescription, which was filled at the drug store. Mrs. Kelchner had gone to Naperville at one o’clock. A telegram -was sent to her, and she returned at six o’clock. Prom that time until his death the deceased was in charge of his wife, Siebert, and the children, who gave him medicine. On Wednesday morning the deceased felt some better and got up, stepped out of the house for a moment, but soon came in and drank some coffee, and feeling worse went to his bed. Prom that time on he grew worse until he died.
Dr. Murphy and a consulting physician called on Thursday afternoon, suspected poisoning, and so notified Mrs. Kelchner. After the death the coroner was notified, and a post mortem was had on Priday morning. The stomach, the liver and contents of the stomach were delivered to Prof.-Walter S. Haines, who found in the contents of the stomach something over five grains of undissolved arsenic, which was detected with the naked eye. It was proven by Prof. Haines, who for nineteen years has made the subject of poisons a special study, and by Prof. John H. Long, professor of chemistry in the Chicago Medical College, and by Dr. H. N. Moyer, professor of medicine at Rush Medical College, that, vomiting as the deceased did during his last sickness, the undissolved arsenic found in the stomach was administered to him within from two to four hours of his death. During this time, and, indeed, during the entire day of his death, the defendants gave the deceased his drinks and medicines. It was also shown that during Thursday the deceased was unable to procure or take anything except as it was furnished and given by the parties in charge. It seems, therefore, apparent, from the evidence, that the arsenic found in the stomach at the time of Kelchner’s death was given him by the defendants. It* is also plain, from the evidence, that the first attack which the deceased had on Tues-» day was produced hy arsenic placed in his pail or dinner by some one. It is true that no witness saw the defendants place poison in the pail of the deceased, -but that fact might be proven by circumstantial evidence. I't ivas shown by the evidence that the dinner pail used by the deceased is what was known by shop-men as a, “two-story” dinner pail. It is so arranged that coffee is placed in the lower half and food in the upper half. The defendants occupied the house with the deceased on Monday night. No other persons were in the house but his children. Two grains of arsenic, as shown by the evidence, is a sufficient dose to produce death. That quantity of poison, or even more, could have been placed in the pail during the night or the next morning, by any occupant of the house, without being detected by the deceased at the time he placed his coffee in the pail.
But whether this is the correct theory or not is immaterial. If the entire evidence introduced before the jury, when considered as a whole, was- sufficient to fairly establish the fact, beyond a reasonable doubt, that the deceased came to his death from poison administered by the defendants, when or in what particular manner the poison was administered to him can make no difference. Moreover, the guilt of the defendants was a question of fact for the jury to determine from all the facts and circumstances in evidence in the case, and after a careful consideration of all the evidence we are not prepared to say the verdict of the jury was not authorized by the evidence. Indeed, after a careful consideration of the entire record we find no substantial error, and the judgment will have to be affirmed.
Judgment affirmed.
Bailey, 0. J., and Bakeb, J., dissenting.