Katie Browder Stricklin, daughter-in-law of the deceased, was convicted by a jury for committing the offense of murder in the first degree, with a resulting punishment of confinement in the state penitentiary for twenty years and one day.
After the trial court overruled her motion for new trial, retained counsel seasonably perfected her appeal from the judgment entered on the verdict.
On her behalf counselors have filed several assignments of error contending the verdict and judgment were entered contrary to the law. They contend the evidence is insufficient, the trial court erred in refusing to place the witnesses under the rule and in waiting until after each had testified before cautioning him to refrain from discussing his testimony with other witnesses, and lastly, the trial court erred in allowing into evidence proof of another crime.
In order to bring into proper focus the assignments and our treatment of same we will narrate briefly our findings of the evidence as reflected from our review of this record.
On Sunday, May 30, 1971, the deceased and his wife resided on Walnut Street in Savannah. They were preparing to have Sunday dinner. Dining with them that day were a daughter, Mary Vickery; a son, Ray Stricklin; and the defendant, Ray Stricklin’s wife. The wife of the elderly deceased, Mrs. Mollie Stricklin, was preparing the meal. The defendant served the tea that was consumed with the meal.
Later that day, while visiting her brother, the deceased and his wife became ill, vomiting and suffering from diarrhea. That evening they were both ordered to the hospital. Mrs. Stricklin was treated and dismissed. The deceased was admitted to the hospital as a precautionary measure because of his age of 81 years and his condition of hypertension and hardening of the arteries.
The family attended the deceased and the proof reflects that on the following Wednesday morning his condition was markedly improved. The record reflects that on the same day, while both the defendant and Mary Vickery were at the hospital caring for the deceased, Mrs. Vickery left the room and upon her return noticed the defendant giving some Coca-Cola to the deceased. She assisted the defendant and helped administer this coke to the deceased. Upon consumption of a portion of the coke, the deceased immediately became seriously ill once again. His condition deteriorated and his demise took place the next morning around 7:30 a. m.
The record further reflects that the defendant, when attending the deceased, would raise the covers on the bed and laughingly exclaim, “he has done it again” when the deceased was inflicted with diarrhea.
The deceased was buried on the following day, Friday, and members of the family had gathered at the home site. Mrs. Stricklin, still ailing from her Sunday attack, had been examined by a physician who recommended a soft diet of jello, soft drinks and soups. The record reflects that his opinion at that time was she was suffering from a virus.
On Sunday, June 6, the defendant and her husband purchased some soft drinks and jello. The defendant made a bowl of jello and poured some into a small bowl, exclaiming to other relatives that the small bowl was for Mrs. Stricklin and for her to have some.
That following Monday morning Mrs. Stricklin related that she got some jello out of the refrigerator and took some. Soon afterwards she started vomiting and suffering from diarrhea and as a result was taken to the Hardin County Hospital. The following day she was transferred to the Baptist Hospital in Memphis. There a
The record then reflects that in the presence of the defendant the doctor made this finding known with instructions that other members of the family still in the house in Savannah should move out and the health department should be notified. At that time the defendant stated that if it was in the j ello she was guilty.
She then called Savannah and told the son of the deceased to throw all the prepared food stuff out. She emphasized the jello and relish and repeated this instruction.
However, the son did not dispose of the food stuff, but instead placed it in an ice chest and brought it to Memphis.
The son related that at the hospital he and the defendant’s husband started to the car to get the food when the defendant came running after them and began plying them with questions about arsenic and whether or not the doctors knew how one could obtain it. She then appeared to be very anxious to get into the car. So anxious that the son was required to instruct her to turn loose of the car door so that he could unlock it. When the door was opened the defendant removed the chest, set it on the trunk, and started examining the items. She then started carrying the chest across the street to the hospital. The son finally took it, saying it was too heavy for her.
An analysis of the food by the medical examiner’s office in Memphis revealed negative results to all other food stuff, but positive results as to the jello for arsenic.
The body of the deceased was then ordered exhumed. An autopsy was performed which revealed a lethal dose of arsenic in the kidneys, liver and gastric tract in the amount of ⅛ of an ounce. The cause of death was then listed as arsenic poisoning.
Warrants for the defendant’s arrest charging her with murder and attempted murder were issued. When these warrants were served and after being fully advised of her rights in relation to the accusation she related: (a) she might have done this thing, she didn’t remember doing it; (b) she probably did this but was puzzled as to what and where she obtained anything to do it with; (c) she didn’t know what she used if she used anything; (d) she must have done all of this.
The record further reflects that no arsenic was ever found on the premises, nor had there ever been any arsenic kept on the premises.
The defendant did not testify and offered no proof.
On appellate review the record is reviewed by us under rules of settled law which state that the defendant has lost her presumption of innocence which clothes her at the trial as a result of the verdict and the judgment entered in overruling her motion for new trial. That presumption is replaced with a presumption of guilt. The verdict and judgment approved by the trial court has put the stamp of approval on the accreditation of the theory of the state with accompanying discredit of the defendant’s theory. It has settled the issue of the credibility of the witnesses offered by the state. We are not to disturb this verdict unless the defendant shows here that the evidence preponderates against her guilt and in favor of her innocence. See Hornsby v. State, Tenn.Cr.App.,
In the assignment pertaining to the insufficiency of the evidence it is urged that the corpus delicti has not been made out and that the connecting agency of the defendant with the death of Mr. Stricklin was not linked by the proof. The reasoning advanced is that no animosity was shown to exist between the defendant and the deceased or his wife, and we agree that the record reflects the opposite of animosity. They also reason that no motive has been advanced or even intimated under the
We then examine this circumstantial evidence to see if the connection of the defendant with the unlawful death has been made out by the evidence adduced and if there is a sufficiency of this evidence to sustain the verdict and judgment: (See Jamison v. State,
We concede that each of the factual circumstances in this case, when evaluated individually, has at least one reasonable explanation other than the one pointing toward the guilt of the defendant. However, the test is not whether each fact is proven beyond a reasonable doubt, but if enough facts are proven to satisfy a jury beyond a reasonable doubt. See Pruitt v. State, 3 Tenn.Cr.App. 256,
The facts and circumstances in this case are a far cry removed from the circumstances found in Wrather v. State,
One final note should be made concerning the defense argument that no one saw the defendant administer or place the arsenic in the suggested vehicles of transportation for the poison—tea or coke—or in the jello which was proven to have contained it. It would be completely contrary to the stealth necessary to administer the deadly potion to do it openly and in a manner which would call attention to the fact. Excepting for detailed advantages of the medical profession, the decedent would still be in his grave and his cause of death labeled natural causes. This necessitates that the poisoning guilt, as is so often the case, be proven from facts and circumstances which are secondary in nature, but when considered as outlined, items (1) through (14) and (a), (b), (c), and (d), can be concluded to be sufficient evidence to sustain this verdict. See Jamison v. State, supra. The assignments pertaining to the sufficiency of the evidence are accordingly overruled.
Her next contention is that the trial court erred in not placing the witnesses under the rule. The record reflects that prior to trial the defendant, on motion, asked the court to instruct the witnesses to refrain from discussing the case prior to and subsequent to testifying. The court, on notification by the state that all the witnesses were not there at the start of the trial, was physically unable to issue the instructions. It did however admonish the witnesses after they had completed their testimony. We think this was sufficient. It must be realized that prior to indictment and trial, months may have elapsed in which the various witnesses to an event could have discussed the matter. It is only after testifying that we think the force of the rule comes into play to prevent the before and after witnesses from comparing notes and altering testimony that may be given. In any event, no prejudice has been shown here by the' defendant that admonishing the witnesses afterwards was to his detraction. See Nance v. State,
Lastly, the contention is made that the attempted murder of Mrs. Stricklin was evidence of another crime and therefore the trial court erred in allowing the proof into evidence over the defense counsel’s objection. First, he urges that it was a subsequent crime and therefore not proper. There is no merit to this. See Thompson v. State,
Further, it is competent to show and prove guilty knowledge as opposed to acci
In closing, at oral argument it was advanced that the defendant had been acquitted of the “other crime”, the assault of Mrs. Mollie Stricklin. Hence, the evidence is therefore neither clear nor convincing. With this we disagree. The test is whether at the time of admission it is competent. By that standard it is or is not competent, not by what may have happened in months to come. This dehors adjunct of the assignment is without merit. The assignment is accordingly overruled.
The judgment of the trial court is affirmed.