135 Iowa 264 | Iowa | 1907
Lead Opinion
— Jennie Blydenburg, wife of the .defendant, died at their home in Eldora, Iowa, on May 29, 1903, and at the October, 1903, term of the district court for Hardin county, the grand jury returned an indictment,, charging him with murder by arsenic poisoning. To this charge he pleaded not guilty, and from the judgment entered against him has brought the case to this court for the review of certain assigned errors. To their intelligent consideration, it is essential that we state some of the material facts. Defendant and deceased were married in Ohio in October, 1902, and soon thereafter came to Eldora, Iowa. He was then about thirty-eight years of age, and she several years, his senior. There is some evidence tending to show that some disagreement arose between them over property and other matters, but they continued to live together in at least outward appearance of harmony. The great preponderance of the evidence tends to show that the wife was in poor health for some time prior to her death, and was complaining of kidney trouble, though she was not confined to the house. On Sunday, May 24, 1903, she went to church alone, the defendant remaining at home with the children by a former marriage, a daughter of sixteen and a son of thirteen years of age. According to the testimony of defendant and of his son and daughter, the latter prepared the dinner without assistance, but there is evidence of alleged admission on defendant’s part that he prepared it. The deceased returned from church about noon, and a little later she and her husband and the two children gathered at the table and partook of the dinner. About seven o’clock in the evening she complained of sickness at the stomach and headache, and soon began vomiting. About eight or nine o’clock defendant called a physician, Dr. Gethman, who seems to have then thought the sickness had been produced by food which de
There is no evidence to show that defendant ever purchased or procured or had any arsenic in his possession. It is conceded, however, that he had on one or two occasions some months prior to the death of his wife purchased a rat poison, known as “Bough on Bats,” for the professed purpose of destroying the rats which infested his premises. It is the claim of the State, to which we shall again refer, that this poison is composed largely of arsenic. In addition to
The name “ Bough on Bats ” conveys no necessary suggestión or definite information to the ordinary. reader or hearer concerning its real nature or quality, save, perhaps, a somewhat far-fetched inference that it is a rat poison. The reader of the advertising columns of the newspapers may assume, as did one of the witnesses, that it is a “ proprietary article ”; but this phase advances us not a step toward the desired end. Indeed, it adds, if anything, to the uncertainty, for the term “ proprietary ” is generally, though not exclusively, applied to articles compounded or prepared acJ cording to secret or patented formulas, and placed upon the market under fanciful names, which give little or no hint of their real nature. The court cannot take judicial -notice that “ Bough on' Bats ” contains arsenic, or that the name is always and everywhere applied to the same compound, or that any two sealed .'packages taken from the same pharmacist’s stock, and bearing such label, contain the same article; nor is there in the record the slightest evidence on which these questions could properly have been submitted to the jury. The eminent specialists employed by the State did not profess to recognize in “ Bough on Bats,” an article of
It is argued that this break in the continuity of the State’s case is bridged over by the evidence of’ Dr. Morse, a witness for the defense, who testified on cross-examination that “ Bough on Bats ” is “ supposed to be ” a preparation of arsenic, and that Shumaker puts the proportion at 50 per cent. He does not claim to have any personal knowledge on the subject, either by way of analysis or otherwise. Conceding the eminent qualifications of the witness and of the writer whom he quotes,' it remains true that the evidence . as offered is that of mere supposition, based on hearsay.
We may add, also, that we are wholly at a loss to know on what theory the witness Steely was permitted to recite to the jury the printed statement on the package produced by him prescribing the proper antidote for poison by “ Bough on Bats.” It is not intended to hold that evidence is not admissible to show, if such be the fact, that Bough'on Bats is a known and definite compound or preparation containing arsenic.
There is much in this record, the length of which is our excuse for not setting it out in full, to justify us in saying that the prosecutor here allowed his zeal of advocacy to betray him into palpable abuse of the privileges of counsel. This is especially marked in the last three questions above quoted. For a half hour or more he had been making repeated and strenuous effort to avoid both the rule of law which confronted 'him and the adverse holding of the trial court, and then, when the court had finally and decisively excluded the matter, counsel, in apparent deliberate disregard of the ruling against him, put the question: “ You may state whether or not at that time the defendant was suffering from having taken poison.” The counsel conducting this examination is an experienced lawyer, than whom none knew better the scope and extent of the privilege which
But, even if right in his contention for the admissibility of this testimony, it was impossible for him to have misunderstood the force and effect of the rulings of the court which stamped the evidence sought as incompetent for the purposes of that trial. He had made his record, and preserved his exception, and was bound by every rule of law and orderly practice to respect it. In failing to do so, and putting the question above quoted, we are forced to the conclusion that it was inspired, not by the hope of getting an answer, because the attitude of the court assured him that it would be excluded, not to make a record for the purposes of appeal, because the record was already complete, but rather to get it into the minds of the jurors that the defendant under the sting of a guilty conscience had attempted suicide. If “ Hough on Hats ” contains any more subtle or effective poison than did this question under the circumstances, then, indeed, it is a most powerful agent of destruction. There may be circumstances under which the injurious effects of such a question would be neutralized by the adverse ruling or by th'e injunction of the trial court, but such are not the circumstances here presented. The long and spirited discussion between counsel on either side, and the court was of a character to rivet the attention of the jurors and the persevering effort of the prosecution to break down the barrier of objections and adverse rulings, must naturally have excited their intense interest in anticipation of some startling disclosure if only the door thereto could be opened, and when counsel, defying the ruling against him, said in effect to the jury that, if permitted to do so, the witness would swear that appellant had attempted self-destruction, he inflicted an injury upon the defense, which no amount of admonition by the court could repair. State v. Roscum, 119 Iowa, 330; State v. Ean, 90 Iowa, 537.
The general rule which excludes hearsay evidence is not open to any dispute, but it is subject to many well-reeognize’d modifications and exceptions. Concerning the exception which we here recognize, there has been some discordance in the cases; but the view we have expressed has the support both of reason and of the weight' of authority. That a non-expert witness may testify to exclamations and complaint of pain and suffering by a sick person has often been affirmed by this court. Gray v. McLaughlin, 26 Iowa, 279; Keyes v. Cedar Falls, 107 Iowa, 530; Blair v. Madison, 81 Iowa, 313; McDonald v. Franchere, 102 Iowa, 496; Stone v. Moore, 83 Iowa, 186; Armstrong v. Ackley, 71 Iowa, 76; Aryman v. Marshalltown, 90 Iowa, 350. The only case to the contrary is Ferguson v. Davis, 57 Iowa, 601, which was overruled in Keyes v. Cedar Falls, supra. Assuming that this rule is applicable only where the complaint is as to present sickness or suffering (though some of the precedents cited seem not to be so restricted), it is held by the better reasoned authorities that the restriction does not obtain as to statements made by the patient to a physician concerning •the clinical history of his case. 5 Ency. of Evidence, 608. In Barter v. Merriam, 93 Mass. 322, the proposition has been very clearly and correctly stated follows.:
The exception in favor of the testimony of a physician repeating the statements of a patient concerning the history of his ailment is again recognized in Roosa v. Loan Co., 132 Mass. 439. See, also, to same effect, Quaife v. Railroad Co., 48 Wis. 513 (4 N. W. 658, 33 Am. Rep. 821); Yeatman v. Hart, 6 Humph. (Tenn.) 374; Cooper v. Bell, 1 Head (Tenn.) 373; Stone v. Watson, 37 Ala. 279; Feagin v. Beaseley, 23 Ga. 17; Meigs v. Buffalo, 7 N. Y. St. Rep. 855; Rogers v. Crain, 30 Tex. 284; Eckles v. Bates, 26 Ala. 655; Allen v. Vancleave, 54 Ky. 236 (61 Am. Dec. 184); 1 Green, Evidence, section 102; Cronin v. Railroad Co., 181 Mass. 202 (63 N. E. 335, 92 Am. St. Rep. 408); Averson v. Kimmaird, 6 East, 188; Commonwealth v. McPipe, 3 Cush. (Mass.) 181 (50 Am. Dec. 727); Harriman v. Stowe, 57 Mo. 93; Kennedy v. Upshaw, 66 Tex. 451 (1 S. W. 308); Fay v. Harlan, 128 Mass. 244 (35 Am. Rep. 372). In many cases testimony of this, character has been admitted on the theory that it is
Its importance in the present case is manifest when we remember that, according to the theory of the defense, Mrs. Blydenburg died of disease of long standing, or at least that such disease was sufficient to account for many of the alleged indications of poisoning. Dr. Morse was the attending physician at. the time of her death, and apparently, after giving the case careful consideration, diagnosed her illness as uraemia, caused by a failure of the functions of the kidneys, which results in poisoning the system of the sufferer. In that attitude of the case the fate of the accused turned in a very large measure on the weight which the jury would accord to the opinion thus expressed. In order to intelligently and fairly pass upon that question, it was essential that the witness should be permitted to explain thé basis of the diagnosis made by him. Under the ruling of the trial court, this right was denied, and that the error was prejudicial is too clear for argument.
VII. It is also insisted on- behalf of the appellant that the record discloses a manifest failure of proof of the corpus delicti — the death of Mrs. Blydenburg. by arsenic poison, criminally administered by some one. On this .point a majority of the court is inclined to the view that the showing made by the State was sufficient to carry that question to the
By another request, he asked that the jury be told that “ each circumstance essential to the conclusion of the defendant’s guilt should be fully established in the same manner and to the same extent as if the whole issue rested upon it.” The court refused both requests.
This court is united in the opinion that the law is stated with substantial correctness in the instructions asked, and that the rule there announced was pertinent to the issue on trial, but we are not wholly agreed upon the question whether such rule was not in fact embodied in the instructions given upon the court’s own motion. This difference of views upon the constructions of the language employed by the. trial court proves at least that the law upon this point was not expressed with the clearness which is desirable in a case of such grave importance, and we advise that, upon another submission, it be restated in terms- involving no ambiguity.
Eor the reasons stated, a new trial must be ordered. Many other exceptions have been argued, but those we have considered sufficiently dispose of the. case¿ and we shall not attempt their consideration. The judgment of the district court is reversed and cause remanded:— Reversed.
Concurrence Opinion
(concurring). This case is now before the court under rehearing. As presented on - original submission, a part only of the matters now urged upon our attention by counsel for appellant were argued and relied upon for reversal. The principal matters of contention for error were three — the refusal of the court to give an instruction as
Coming, now to the present opinion prepared by the Chief Justice, based largely on argument submitted on the rehearing for the first time, I agree that upon some, at least, of the grounds discussed, and for reasons as stated, the judgment should be reversed, and the case go back for a new trial.