82 Wis. 580 | Wis. | 1892
1. It is earnestly contended by counsel for the defendant that in this case the corpus delicti, by which is meant the essential substance in law of the offense charged, has not been proved; that possession by the defendant of the deadly poison which clearly caused the death of Elia Maly has not been shown; that this is legally essential to a
This may all be conceded, but it does not follow that the proof that the accused had possession of poison to administer must be direct and positive, or that she had it in her exclusive possession. The substance of the offense may be proved as well by circumstantial as by direct evidence, and it is enough to show that poison was immediately at hand, in the house in which she lived, in a cabinet usually unlocked in the parlor, and that she had knowledge of the fact; that it was within her easy and immediate reach. All this the evidence clearly tended to prove. The same learned author says that “ no universal and invariable rule can be laid down, and every case must depend on its own particular circumstances; and, as in all other cases, the corpus delicti must be proved by the best evidence which is capable of being adduced, and such ah amount and combination of relevant facts, whether direct or circumstantial, as establish the imputed guilt to a. moral certainty, and to the exclusion of every other reasonable hypothesis.” .
We think it is clear that the evidence given was competent to establish the body or substance of the offense charged, and it appears to have been submitted with proper instructions to the jury. The verdict of the jury cannot be disturbed on the ground urged by counsel; and as there was evidence given from which the jury might fairly find the existence of every essential element of the crime with which the defendant was charged, and having found that she was guilty, their verdict cannot be set aside as contrary to the evidence. A discussion of the evidence would serve
2. The court charged the jury, upon the subject as to whether the strychnine poison which caused the death of Ella Maly was taken by her by accident, that “ it is proper for you to consider what the testimony shows of the death of Mrs. Mitchell in the early part of the year 1890. Does the evidence in this case convince you beyond reasonable doubt that she died of strychnine poison, and that the strychnine which killed her was not the nux vomica which Dr. Mitchell prescribed for her? ’ If it does not, then her death can have no bearing upon the question now under consideration, nor upon any other question in this case. But if you should determine the question just suggested in the affirmative, and should also be convinced beyond a reasonable doubt that at the time of Mrs. Mitchell’s death Dr. Mitchell’s family consisted of several members, of whom this defendant was one, and that none of the others were poisoned, the fact of her death may be considered by you in determining whether Ella Maly’s death was chargeable to accident or not. To convict, you must be convinced beyond a reasonable doubt that Ella Maly did not die from strychnine accidentally taken.” And this is assigned for error.
The substance of this instruction is that if the jufy should believe, beyond a reasonable doubt, that the death of Mrs. Mitchell was caused in the early part of 1890 by strychnine poison, not the nux vomica prescribed by Dr. Mitchell, while the defendant was a member of the Mitchell family, and that none of the others of the family were poisoned,
In Queen v. Geering, 18 Law J. M. Cas. 215, the prisoner was indicted for the murder of her husband in September, and evidence was tendered by the prosecution of arsenic having been taken by the prisoner’s two sons, one of whom died in December, and the other in March subsequently, and also by a third son, who did not die. The prisoner lived in the house with her husband and sons. Proof was given, as in this case, of a similarity of symptoms in the four cases; but the testimony was objected to on the ground that the facts proposed to be proved took place subsequent to the death of the husband, and that the effect of the evi
It was entirely proper for the court to submit to the jury the question, “Was Ella Maly’s death a natural death, or was it caused by strychnine poison?” There is no reason to contend that this was submitted as decisive of the entire case. Taken with the context, there is no reason to suppose that the jury were misled by it. The evidence does not afford any ground for thinking that Ella Maly committed suicide, and the instructions given on'that subject are not objectionable. The correctness and fairness of the charge are to be determined, not from a detached sentence or statement, but from its fair meaning and effect as a whole.
The body of the charge is, in the main, in substance like that of Chief Justice Shaw in Comm. v. Webster, 5 Cush. 309, which, like this, depended almost entirely on circumstantial evidence; and in that case the jury were told, in substance, that in order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the accused, and incapable of any other reasonable hypothesis than that of his guilt; and it is assigned as error that in this case no such instruction was given. It would have been proper to have given such an instruction in this case, as well as some others which have been suggested; but the failure to give them, no request therefor having been made, is not error, where the question of the defendant’s guilt is fairly left to the jury, as in this case, upon the entire evidence.
. At the close, of the charge the defense asked the court “ to further charge to the effect, under the statute, that no presumption arises against the defendant on account of no evidence having been produced by her.” The court said that was correct, and read to the jury sec. 4071, R. S., and asked defendant’s counsel if he desired any further instruc
Although the deceased had thirty-five or more convulsions before her death, her life was prolonged an unusual and even extraordinary length of time after the strychnine began to operate. It is in evidence by medical experts that the remedies administered arrested temporarily the action of the poison; that the chloroform gave out, and convulsions recurred. The evidence is certainly very satisfactory that Ella Maly died from strychnine poisoning. No one of the several able medical experts expressed the slightest doubt on the subject, but all concurred in this conclusion. It was left for the jury to determine whether, beyond a reasonable doubt, the death of Ella Maly was the result of strychnine poisoning, and there was abundant testimony to justify the jury in the conclusions at which they arrived that such was the cause of her death.
3. The matter of exclusion of other witnesses from the court room during the time any witness is testifying is entirely a matter of discretion, and not of right, and we do not think there is anything in the record to show that this discretion was not properly exercised. We do not think it was
4. There is no doubt but Dr. Haskell was competent to testify as an expert in respect to cases of strychnine poisoning. The case of Soquet v. State, 12 Wis. 659, follows the decision in Boyle v. State, 57 Wis. 479; and these cases go only to the extent that a medical witness who has had no experience, and has never seen a case of death by strangulation, or a case of strychnine poisoning, cannot be allowed to testify as an expert on such subjects, if his knowledge in respect thereto is derived entvrely from reading scientific or medical books. The decision in Soquet v. State goes upon grounds so clearly stated and so abundantly sustained by adjudicated cases both in England and America, that it is not necessary again to refer to the authorities, many of which are cited or stated in Boyle v. State, 57 Wis. 479. Text-books or scientific works cannot be read in evidence to the jury, and the rule cannot, be defeated or evaded by getting their contents before the jury by having a witness testify to what they contain. The subject has recently been considered in Waterman v. C. & N. W. R. Co., post, p. 618. The trial judge might well have been content with following the decision of this court, as it is his duty in all cases to do, without elaborately explaining his reasons for thinking it erroneous. It is a matter of taste, perhaps, in many cases, whether the trial judge shall publicly indulge in criticism of and dissent from the decisions of the supreme court, but in jury trials^ it is not only a manifest impropriety, but error, where they are material to the merits, as has been held in the case of Scott v. Clayton, 54 Wis. 499. It was error to strike out the testimony of Dr. Hask-
5. Dr. Buck had testified as to the symptoms following the administration of strychnine in a general way quite fully, and on cross-examination he was asked, “ Can you conceive of such a thing as a young girl, twenty-three or twenty-four years old, withstanding thirty-five strychnine convulsions? ” And, on objection, th© court refused to allow the question to be answered, stating that if this special case was to be inquired of, it should be by hypothetical questions based upon the evidence. The question really called for Dr. Buck’s opinion, and, to be of any value, the facts upon which it was based should have been put before the jury. It did not appear that he had heard all the evidence material to this point, and we think the ruling of the court is not open to objection, even though the question was asked on cross-examination, his testimony on direct examination having been quite general.
6. The hypothetical question propounded to Dr. Bell-field did not contain a statement in detail of the minute particulars of proof, but did contain the general features of the case, and particularly of the post mortem appearances of the bo.dy, and what was found in it, and Dr. B. was asked his opinion as to the cause of death. The question was objected to on the ground that it did not contain a statement of all the facts. The doctor answered: “If no other information was furnished than appears, as to the post mortem appearances, and as .to what was found after, I should say strychnine poisoning ” was the cause; that the discovery of albumen in the urine would not change his opinion; that as the question states that the kidney was examined with both the eye and the microscope and found to be congested, but otherwise normal, that under such con
7. It is assigned for error that the court refused to permit Lilly Maly to be asked, on cross-examination, “Will you explain to the jury why you changed your testimony? ”
8. It is assigned as error that the trial judge, after the verdict of the jury had been rendered, and on the same day, before a motion for a new trial had been filed, expressed his opinion of the verdict and merits of the case to a newspaper correspondent, to the effect, among other things, that he was firmly convinced that the evidence warranted a conviction for murder in the first degree, or else he would at once entertain (this was on Sunday) a motion for a new trial; that he was doubtful whether, inasmuch as the defendant was a woman, sympathy might not operate to produce a verdict of not guilty. The statement was revised by the judge, and was published before the motion was heard, and it was made one of the grounds for a new trial. It is urged that expressing an opinion on the guilt of the defendant, and in effect deciding the merits of the motion before it was presented and heard, was an infringement of the rule that provides for hearing and deliberation before determination; and the case of Ohms v. State,
Many other points were assigned for error, but not insisted upon at the argument. We have examined them in connection with the bill of exceptions, and do not think any of them merit particular discussion. The defendant has been faithfully, zealously, and ably defended, and in the trial and proceedings resulting in her conviction of this great crime we are satisfied that no error has intervened to her prejudice, and that the judgment of the circuit court must be affirmed.
By the Court.— The judgment of the circuit court is affirmed.