Berrie v. State , 55 Okla. Crim. 302 ( 1934 )

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county of murder and his punishment fixed at imprisonment for life.

Defendant contends the evidence is insufficient to sustain the judgment; that neither the proof of death by poison or that defendant administered any poison to deceased is shown. The case rests on circumstantial evidence. Briefly stated, the facts are about as follows: Defendant was a minister of many years' standing; he was charged with the murder of his wife by administering poison. He was about 51 years of age, and had been married to deceased about 29 years, and the couple had a grown and married son. The deceased was about the same age as defendant, and was undergoing a change of life. She was subject to headaches, and had complained of kidney trouble. She was in the habit of taking aspirin compound in capsules and sometimes spirits of niter. On the day preceding her death she went to Sunday school, although complaining of headache. On returning, she drank a cup of coffee but ate no dinner. Soon after she took a capsule from the aspirin compound box, and about 1:30, with a lady friend, went to attend a lecture at a church. During this lecture she became ill and was taken to her home. She began to have convulsions, which continued at intervals for about 30 hours, until her death. Dr. Rafter was called, made a simple examination, and gave her a hypodermic. Dr. McAlister was next called, gave her a hypodermic, and ordered her sent to the hospital. Dr. Osgood, a homeopathic physician, was then called and also gave a hypodermic, and later prescribed passi-kola to be given every two hours. She died the next afternoon. Some time prior to his wife's death defendant had a young woman, Ida Bess Bright, then 17 years of age, 18 at the time of the trial, then attending high school, doing work as his secretary and spending a considerable portion of her time in his home. He became infatuated with her, had written her a number of amorous poems, some of them extremely suggestive. At one time deceased had objected to her presence in the home.

This young woman was agreeable to his advances, he had met her at different places in Muskogee, and for some months before the death they had been having sexual intercourse, meeting at cafes, hotels, and at "Mary's Place"; defendant in some instances renting rooms for this purpose under an assumed name. Also defendant and the young woman had discussed his Procuring a divorce and their getting married. Immediately after the funeral he was with the Bright woman, playful, laughing, and happy. Fifty-seven days after the death they were married. Suspicion having been aroused at the circumstances under which the wife died, her body was exhumed and a post mortem made and strychnine found. Soon defendant was called in and was interviewed by the county attorney and the chief of police and made contradictory statements. He later admitted he had made false statements. After a preliminary examination, he was confined in the county jail, and while there sent to his residence for a Bible; this was brought to him and received by the head jailor, who testified he examined it carefully, shook the leaves to see that nothing was concealed in it, but that there was a, blank sheet of yellow paper in it. A day or two later defendant produced an identical appearing sheet of yellow paper on which purported to be a suicide note written by deceased, stating in substance she was tired of life, that it was not worth the effort. "Good Bye Forever." This was produced by defendant at a habeas corpus hearing as a showing the wife had committed suicide. It was conclusively proven that this note was not in the handwriting of deceased. As refuting the idea of suicide several times just prior to her death, deceased said in substance she could not understand what was the matter with her; she had never been so affected before.

The theory of the state was that defendant had become tired of his wife and had conceived the plan of poisoning her that he might marry the young woman; that a capsule with some form of strychnine was substituted for the aspirin compound capsule which deceased was in the habit of taking, and that she did in fact take such poison capsule, which caused her death. The theory of defendant is that death was due to natural causes, probably uraemic poisoning. The state, in support of its theory, as is above stated, offered testimony of the relations between defendant and Ida Bess Bright, his poems and statements to show a wish to be rid of his wife, his conduct in relation to the purported suicide note as evidence of a sense of guilt, his willingness to present false testimony to explain the death of his wife. Further evidence of the wife, symptoms just before her death as proof that she died from strychnine poisoning; that she was apprehensive, thrown into convulsions by the least noise, the least touch, as by attempting to take off her underclothing; the creak of a stair, the whistling of a train, the touch of her grandchild; that she was conscious during and between these convulsions and relaxed and with pupils dilated.

On this point Dr. Rafter testified:

"* * * Q. Did you then, Doctor, at a later time, form an opinion as to what caused her illness and death? A. Yes, sir, I did. Q. What was that opinion? A. I thought it was strychnine. Q. Doctor, did you have occasion to and did you talk to me before the post mortem or before the body of Mrs. Fannie Berrie was taken up? A. You asked me in case we held an autopsy what we would find if we found anything and I said if we found poison it would be strychnine. * * *"

Dr. McAlister, when deceased was not taken to the hospital as he had directed, withdrew. His testimony is not very definite. He described the symptoms much as the other physicians and stated deceased had symptoms of strychnine poisoning; that from the symptoms he observed, and in the light of the autopsy findings, the chances were she died of strychnine poisoning. On cross-examination a hypothetical question was propounded covering the symptoms and actions of the deceased between the time she was taken to her home and the time of her death, and he answered:

"I think the description you have read would be typical of either tetanus or strychnine."

He was then asked:

"Q. Eliminating the question of tetanus, what would you say would be the cause of death? A. It is a text book picture of strychnine poison."

Taylor Rogers, a state chemist, testified he made the chemical test for poison and discovered strychnine in the vital organs.

Dr. Bailey, connected with the Wesley Hospital, Oklahoma City, testified he made a microscopic examination of the vital organs, thus:

"Q. State whether or not, Doctor, your findings were in conformity with the findings you would expect to make or the symptoms you would expect to find upon the examination of the organs of a body that had been administered strychnine? A. Yes sir, they were. The findings are of the nature and kind and degree that could be found in strychnine poisoning cases. Q. Were your findings in conformity with uraemic poisoning? A. No, sir."

Being further questioned, he testified in substance the symptoms following strychnine poisoning coincided with all the symptoms manifested by deceased just before death, and that the time of death after strychnine poisoning varied from a few minutes to as long as thirty or forty hours; he then stated he found no indications of uraemic poisoning, and that the administering of hypodermics would delay the action of strychnine.

Wolsey, police chief, testified that before filing of charges defendant was brought to his office with the Bright woman, his then wife, and informed the body of his former wife had been taken up and strychnine found in the body; that her death was under investigation; that defendant did not have to make any statement whatever. He was then questioned apart from his wife, and said his relationship with Ida Bess Bright before the death of his wife was merely with regard to church matters. He denied having been with her at any time at De Luxe Cafe or other places mentioned and any improper conduct. After the wife had been questioned, witness again talked with defendant, who then admitted meeting the Bright woman at De Luxe Cafe and at various other places, as the Pan American Cafe and at "Mary's Place," and that he had intercourse with her a number of times from about Christmas to the death of his former wife, loved her better than any woman he had ever seen; that he had discussed with her his getting a divorce. He also admitted having written the verses and other writings in possession of police. Said they had been written and delivered prior to the death of his wife. Defendant at first said parts had been cut from some of them, but denied he did this, but later said he had and had burned these parts and had destroyed other writings altogether. The trend of these is shown by the following excerpts from different items:

"* * * My arms are hungry to hold you to my heart in love's embrace. I love you so much, my darling, For giving your love to me; You satisfy every longing What more to me could you be? * * *"

"* * * Your head laid upon my breast Content in love to rest. * * *"

"* * * A thousand times each nite I see you in my dreams. * * *"

"* * * For I don't care what the world may say I'll forget the gain, the loss and the pain That tortures my pulsing breast Sweetheart, I love you best."

"You live in this heart of mine, As long as the world is standing * * * Without you I'd care not to live. * * *"

"* * * I never knew until your dear arms entwining * * * And I never want to be free I know I've found the only girlie for me —

* * *

So you will be mine some day forever. Sweetheart I'm love bound All my heart I've given thee Just longing and waiting till I am set free, Then out of lifes ocean together we'll ride, Basking in loves sunshine happy and free Through life we'll journey whatever betide,

* * *"

In one he asks "Oh, why can't we be free." In another, "Some day sweetheart twill not be long, that we shall be as one." And so on, and so ad nauseam.

There is evidence of other circumstances tending to sustain the state's theory. Thus it is shown that some time after the death defendant and the Bright woman were in the yard; she took from a trash container what purported to be a small box or bottle, which he instantly took from her hand. Just before death a ring was removed from the finger of deceased and later given by defendant to the Bright woman. In a habeas corpus hearing defendant produced the false suicide note above referred to, and in addition testified his deceased wife had threatened to take strychnine as showing a knowledge that death was due to strychnine poisoning; that he told witness Wolsey that, between the time of the death of his wife and his marriage to the Bright woman, she mentioned to him it was rumored his wife had died of poison, and he immediately thereafter destroyed some of the notes and poems.

Neither the Bright woman nor defendant testified in this trial, although several defense witnesses were called, among them Dr. Osgood, who attended deceased until her death. He signed a death certificate reporting the death due to nephritis and endocarditis. He prescribed passi-kola, which is composed of ignatia, 1/10 drop of ignatia to a teaspoonful of passi-kola; that ignatia contains strychnine, 1/330 of a grain to the teaspoonful of passi-kola; and that a fatal dose of strychnine is 1/2 grain. On cross-examination he said that there was 9/1000 of a grain of strychnine to an ounce of passi-kola.

R. M. Isham, a chemist, testified for defendant that the usual dose of strychnine is 1 1/2 grains, a minimum dose 1/2 grain, and in substance said he had discussed with Dr. Osgood the medicine prescribed, and that passi-kola contained 14/100 milligrams per ounce, and that such quantity was sufficient to satisfy the test to show the presence of strychnine; that he examined the urine analysis of deceased, and that it showed death due to uraemic poisoning; that he was not able to tell how much strychnine had been absorbed or assimilated in the body; that in a large dose 9/10 would be so used — less in a small dose.

Upon the whole case, the state contends the evidence fully sustains the judgment; that the state has shown a desire on the part of defendant to be rid of his wife, a guilty love as a motive for the crime, has shown a knowledge by defendant of the habit of his wife to take harmless capsules and opportunity to substitute poison; that death was not due to natural causes nor to suicide, but to strychnine poisoning; that defendant knew this to be the cause of death, and attempted to concoct false testimony to explain death from strychnine poisoning; that, since an unlawful homicide by poison must in practically all cases be proven by circumstantial evidence, the circumstances proven are sufficient to require the submission of the case to the jury; that they exclude every reasonable hypothesis other than the guilt of defendant.

Cases on criminal law recognize that illicit love furnishes a motive for a great many murders and other crimes. Some cases state it is more fruitful than any other single cause. Miller v. State, 9 Okla. Cr. 255, 131 P. 717, 723, L. R. A. 1915A, 1088; Brown v. State, 9 Okla. Cr. 382, 132 P. 359, 372.

In the instant case the circumstances proven form an almost complete setting for a crime of this kind. The testimony that deceased died from strychnine appears conclusive. Suicide as a cause of death is eliminated. Then, with proof of this powerful motive of defendant to be rid of his wife and to have the Bright woman without hindrance or disturbing his church affiliations, must have led the jury to the irresistible conclusion of defendant's guilt.

The only other assignment requiring discussion is that the county attorney was guilty of misconduct in the trial and that the trial court likewise committed error in the conduct of the trial. The county attorney conducted a vigorous prosecution, and in his zeal overstepped the proper functions of his office. In the opening statement to the jury he began the reading of certain writings of the defendant as a part of his statement. Any prosecuting officer should know better than that. Upon objection being made, the court promptly sustained it. At other times his questions were leading and suggestive, but objections were generally sustained. The court was hardly peremptory enough in his rulings and control of the county attorney. Counsel for defendant made a spirited and able defense, interposed many objections and took many exceptions. In some instances these were argumentative, and the court in one instance threatened to fine him. This was improper, and is to be condemned. While in the heat of a closely contested trial rather difficult questions which severely tax the patience of the court sometimes arise, yet a trial court should exercise more judicial poise and temperament.

Several other assignments are presented and discussed to some extent in the briefs. We have examined all of these, none have been overlooked, but we think it unnecessary to analyze or refer to them further. They present no material error prejudicial to defendant.

From a careful and earnest consideration of the entire case, we are satisfied the errors mentioned did not in any wise affect the verdict, and that a reversal on account of these errors would be wholly unjustified.

The case is affirmed.

DAVENPORT, J., concurs.