Dean v. State , 173 Miss. 254 ( 1935 )

Appellant, the defendant, an unmarried woman, was indicted and convicted of murder by poisoning. The deceased was a surgeon and the defendant a specialist in pediatrics. The crime is charged to have been committed shortly after midnight on the morning of Friday, July 28, 1933, in the office of the deceased, the parties being there alone. The corpus delicti was established by a dying declaration made on the following Wednesday night, August 2d, the accusatory part of which was that "Dr. Dean gave me a drink of whisky with poison in it." Cf. Lipscomb v. State, 75 Miss. 559, 574, 23 So. 210, 230. The death occurred on Sunday morning August 6, 1933.

The trial occupied a period of several weeks, resulting in a record of eleven large volumes. There are many assignments of error, all of which have been elaborately and ably briefed. It would be impossible to discuss all these assignments in an opinion of reasonable length. We must, therefore, confine the discussion to the three more important and serious of the assignments, adding only as to the others that they have been carefully examined and we find no error in them of sufficient gravity to require a reversal.

The ground for reversal to which the principal argument has been directed is that the verdict is against the great weight of the evidence. At the threshold of the inquiry on this assignment, we are met with the stubborn fact not only that there is sufficient evidence that the deceased died of mercurial poison, but that the evidence preponderates with great force in favor of that conclusion. There is a faint suggestion in the evidence that the deceased may have been a suicide, but this suggestion did not have a support in the case sufficient even to be argued in the elaborate opening briefs for the defendant. Beyond this, the record is absolutely silent upon any suggestion that the mercurial poison was given by any other than the defendant here. As already stated, the deceased in his dying declaration positively and directly charged her with the offense; there is no sort of substantial suggestion reasonable or otherwise in the entire record as to how or when or by whom he could otherwise have been given the fatal drug.

The chief basis for the contention by the defendant that the verdict is contrary to the weight of the evidence is found in the argument by her that the proof substantially fails to disclose a motive on her part to commit the cruel crime charged. The proof shows that about three years before the date of the commission of the alleged offense there had come into existence an intense infatuation between the parties, resulting in conduct which caused the separation of the deceased from his wife and ultimately in a divorce upon a suit therefor by the wife. There is evidence which, if fully believed by the jury, would show that this infatuation mutually continued, ardently and without abatement, until the very hour when it is charged that the poison was given. Upon this state of case defendant earnestly submits that it is contrary to all reason that she should even be suspected of contriving or of desiring the death which is charged against her.

On the other hand, there is evidence sufficient if believed by the jury, and the jury did so believe as shown by their verdict, that the deceased soon after the divorce had, as often happens in such cases, entered upon a fundamental reconsideration of his real feelings, and of his conduct, and had determined to seek a reconciliation with his former wife, and to remarry her, if he could so persuade her. That his efforts in this determination had been successful, and the remarriage had been agreed upon to be consummated, according to existing plans, within a short time after the date when it is charged that the crime was committed. The theory of the state is that when the defendant definitely discovered this plan and the final determination of the deceased to persist in it, defendant poisoned the deceased rather than that he should return to his former wife.

According to the long course of observations drawn from general experience, there is no special difficulty in accepting a conclusion such as submitted by the state and as is last above stated. But if we recur to the contention urged by the defense and concede for the sake of illustration that the mutual affectionate attachment between the parties had continued unabated, and on the part of both of them, so that it would be hard to conceive that the defendant could have been willing to kill the object of her devotion, it would be even more difficult to conceive how it could be that the deceased, so ardently attached to the defendant, would, in his dying declaration and in his last deliberate statement on this earth, brand her as a murderess, and aver in this solemn statement of fact that she had brought about his death by giving him poison, if it were not in fact the truth. And in further connection with the argument made by the defendant as to the ardently affectionate attachment then existing between the parties and which had so long existed, there is the fact of the most deadly significance, admitted by her, that although the deceased lingered between life and death for more than a week, she made not a single word of inquiry about his condition at any time, in any manner, of any person. If she did not well know the cause of his condition, how could she have remained thus silent?

The fact last mentioned was thoroughly developed and strongly pressed by the state upon the cross-examination of the defendant, and the only explanation offered by her was that she supposed that the deceased was merely on a spree, and for this reason she made no inquiry. This explanation did not explain; for the evidence strongly preponderates that the deceased was not a drinking man to any such extent as ever to go on sprees. The dying declaration, and the other evidence dealing with the circumstances of the crime, was to the effect that the defendant had several times called the deceased by telephone on that night, insisting that deceased meet her; that finally at midnight he shaved and dressed and went to her home, where she got in his car and went with him to his office; that she brought along with her a bottle containing whisky and that she and the deceased both took drinks therefrom in the office of deceased, and that finally the deceased suggested that it was late, that he was tired, and wished to go home, whereupon the defendant suggested that they take a farewell drink and requested the deceased to go into the hall and get some water; that the deceased went into the hall and upon his return the liquor was already poured; that the deceased upon taking this drink perceived that it had a strong metallic, astringent taste, and this was the drink which he declared in his dying declaration was poisoned. Subconsciously, therefore, the defendant in answering that she supposed that the deceased had gone on a spree, really answered that she was aware that he had taken one last drink from which he would never recover.

All such issues as those above stated are distinctly such as to be submitted to and settled by a jury of twelve men of "good intelligence, sound judgment and fair character" drawn from the body of the county. We know, of course, that juries sometimes make mistakes and sometimes deliver unjust verdicts; but we must largely depend upon them, for no better means for the ascertainment of truth upon controverted issues of fact in the general affairs of life have been found. And since this is generally true, how much more so must it be in a case such as this where there is involved, not the ordinary, tangible, and outward facts immediately perceptible to the physical senses, but those innermost problems of emotions and passions which must be reasoned out according to human experience and common observation of human conduct.

The various other issues of fact might be taken up in the order in which they have been presented, but the discussion of them would in every instance lead again, and inevitably, to the same conclusion as that above mentioned in reference to the issue of motive, to the conclusion that the several issues were for the jury, that there is sufficient in all the multitude of facts and circumstances to sustain the verdict, and that the verdict is not contrary to the great weight of the evidence. We, therefore, forego further discussion of that assignment and now proceed to a consideration of the competency and admissibility of the dying declaration.

Under the general rules governing the admissibility of a dying declaration, it is well settled that, ordinarily, the admissible portions of such a statement, other than that portion which would show that the declarant had abandoned all hope of recovery, must be confined to those particulars of fact as to the identity of the criminal agent, the facts of the delivery of the fatal wound, or the giving of the poison, and to such further statements as belong to the cause and circumstances of the act. 1 Wharton Criminal Ev. (10 Ed.), pp. 526, 527.

But when the defense contends, as here, that the declarant was not of rational mind and memory, a wider latitude is permitted so as to disclose from the other portions of the statement, if fairly necessary, whether the declarant was mentally qualified at the time, and it becomes a delicate duty on the part of the trial judge as to exactly how far contemporaneous statements not of the causes and circumstances of the crime are to be received for the purpose stated. For instance, there was admitted here, and correctly, that part of the dying declaration which referred to the insurance policies of the declarant, where they could be found, and where to find the combination to his safe. Also the statement about bills due, and those that he desired paid in particular and the reasons therefor. These all go to the mental competency of the declarant, put in issue by the defendant.

But there were some portions admitted which we think should have been excluded. The questions and answers to the declarant's mother as to whether he had been a brave and good son; and some others along that general line, which we will not crowd into this opinion, which would become of undue length if we should so undertake. But in view of the determined assault made by the defendant upon the mental capacity of the declarant at the time, we have concluded that the errors referred to are not of sufficient weight as to have had any perceptible bearing, harmful to appellant, upon the result of a trial running through the long course of five strenuous weeks, and we, therefore, hold that the stated errors, although technical errors, are not reversible errors.

The most serious question in the entire case and that which has given us the greatest concern is whether at the time of the making of the dying declaration the declarant was under the solemn sense that his death was not only certain but was immediately impending. It is not enough that the declarant has surrendered all hope of recovery and believes that his death is certain from the present wound or injury. It is necessary in addition that he must, according to his settled and hopeless expectation, feel and believe that his death is then imminent or impending, that it will speedily come, or, as sometimes expressed, he must believe that the finger of death is upon him.

In this case the declarant gave directions to his brother that his insurance policies be looked after and that any premium about to become due on any of them be paid before his death. These policies were in his safe in a town some hundred miles away. He also requested that a minister be called to pray for him that he might live until his former wife and his child could arrive, who on that day were arranging, in response to cablegrams, to leave from a point in the Republic of Panama, and who by the most expeditious routes could not arrive except after three or four days' travel. The declarant was a physician and surgeon of admitted ability and of more than the ordinary experience and attainments in his profession. He knew what the evidence shows that the other physicians knew, namely, that the effects of the poison from which he was suffering were such in its then state of progress as not likely to cause immediate death, but was liable, immediately, and at any early hour thereafter, to put him into a state of unconsciousness or partially so, and to result in convulsions thereafter. In such a case we are content to say that it was not necessary that his expectation should then have been of immediate death, but it was sufficient, as was amply shown, that he entertained a settled and hopeless expectation of death, and that it was certain and impending and that it might come at once or in a very few days, during which intervening time he apprehended a state of total or partial unconsciousness. The testimony shows that he did suffer that state after the next day from which he never emerged, dying finally on the fourth day.

It is not our purpose, in admitting the dying declaration in this case, to relax the rule so often heretofore pronounced by this court that the declarant must have firmly believed that his death was impending, that his death would occur soon or speedily, that he was on the verge of death or at the point of death, that he was face to face with death, that the finger of death was upon him. But we would call attention to the fact that in a majority of the numerous cases on the subject heretofore in this court, no affirmative express proof was made either in the language of the declaration or otherwise that the declarant expected his death to follow at any particular short time, as, for instance, that night, that day, the following night or day, or any other particular future day or hour. The defendant argues that in those cases, since nothing was shown to the contrary, it would be inferred or presumed that the declarant expected death in a few hours or in a day or so at most. But if this strict issue of time be essential, as the defendant contends, then it must be affirmatively proved, and could no more be left to mere inference or presumption than could the issue that the declarant had abandoned all hope of recovery. Our cases, therefore, when the scores of them are considered as a body of the law on that subject do not support the strict contention made by the defendant.

The principle upon which the dying declaration is admitted, as a rule of necessity in homicide cases, is that it has been made after the declarant has become without any hope whatever of recovering from the wound or injury and when in his firm belief he has presently approached so near upon the verge of death that he can see as between himself and that inevitable event, soon to occur, no possible expectation, by anything he may do or say, of any personal benefit or advantage to himself in any of the material affairs of the outside world; when every motive to falsehood is silenced, and the mind is induced by most powerful considerations to speak only the substantial truth; when the attitude and expressions of the declarant disclose that he is in accord with the solemnity of the occasion; when the situation as to him and his belief in respect to it is so solemn and impressive that it may be trustworthily considered as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.

We are of the opinion that, taking all the facts and circumstances so satisfactorily shown in proof upon this issue in this case, the dying declaration here offered and received meets every requirement of the rather strict test above stated, and that to reject the declaration would be to lay down a rule so narrow as in most cases to defeat the object of the law in sanctioning the introduction of that kind of evidence.

Finally, there is the serious complaint by the defendant in respect to the conduct of the audience during the trial. The affidavits offered by the defendant on the motion for a new trial aver, to state the same briefly, that the courthouse was greatly crowded with spectators almost daily; that an apparent majority of these spectators were obviously biased in favor of the prosecution, and on several occasions evidenced this opinion by applause when the state had made a point, and by boos or hissing at things done or said in behalf of the defendant. It is admitted that on each of the stated occurrences the judge immediately rapped for order and reprimanded the audience, but took no other action more effectually to repress the demonstrations, and gave no admonition to the jury. No request was made by the defendant that the judge do other than he did; no objection was entered of record, no motion for a mistrial, and for the first time the point was asserted by defendant on her motion for a new trial.

Every good citizen understands the requirement that court sessions shall be conducted in good order, and the essential reasons for that requirement; every person of ordinary intelligence knows it. When demonstrations occur, such as here charged, disrespectful as they are to the personnel of the court and a contempt of its purposes and authority, it is the duty of the trial judge at the first outbreak thereof to immediately restore order, to admonish the audience of the gross impropriety, and to give distinct warning that a repetition will be punished; and, in addition, he should admonish the jury, speaking to them directly, but so as to be heard by the audience, that their duties are to decide only upon the law and the evidence, as the oath taken by them requires, and that demonstrations or like maneuvers by the audience, or parts thereof, are unlawful, and any attention paid to it by the jury would be, in view of their oaths, even worse. When the misconduct is repeated by the audience, or, as for that matter, by any person in it, the judge must take sterner methods. He should cause any and all persons so offending to be seized by the sheriff and brought to bar, there to be fined and committed until paid, or else fine suspended on condition that the offender absolutely absent himself from the courthouse or its environs during the remainder of the term; or upon such a repetition the judge may, and sometimes should, order the courthouse cleared of all except those who had no part whatever in the misconduct, and would not misbehave if allowed to remain, the privilege of any spectator to attend a public trial is conditioned strictly upon his proper conduct while there. And, in addition to the steps above outlined as to repeated disorder by the audience, the judge should again admonish the jury, addressing them directly, including an inquiry whether any juror will be in the slightest influenced by such repeated instances of misbehavior. When a trial judge does as he ought to do, and, as above indicated, fearlessly and without favor, and it becomes known thereby what he is certainly going to do, any further disturbances will disappear. Smith v. State, 95 Miss. 786, 794, 49 So. 945, 27 L.R.A. (N.S.) 461, Ann. Cas. 1912A, 23.

All the aforementioned duties as to good order, and in respect thereof to see that the parties are furnished an impartial and uninfluenced trial, are upon the judge to be performed of his own motion. It is not the duty of any litigant to look after the keeping of order in court. Nevertheless, in nearly every jurisdiction throughout the country where the exact point has arisen it is held, and we concur, that, with the two possible exceptions hereafter to be stated, it is necessary, in order to avail of the misconduct of the audience for a new trial or a reversal, that the party object, and properly move the court at the time of the occurrences complained of, and before verdict. In the absence of objection or exception before verdict, the appellate court must consider that the misconduct was not nearly so serious or pronounced as it was afterwards asserted to be, and that the reprimands and rebukes of the judge addressed to it at the time were considered by the parties as a sufficient cure of the evil. Cf. Brush v. Laurendine, 168 Miss. 7, 150 So. 818.

The two suggested exceptions wherein it may be, but as to which we do not now decide, that a party will not be required to object or move before verdict are these: (1) Where there is an unfriendly demonstration so pronounced that the judge, if attentive, could not have failed to observe it, and he either does nothing whatever at any time about it, or else in such a feeble and complacent manner as to be the practical equivalent of having done nothing. In such a situation it might be held that the party is not required to take the risk that the judge upon the objection will still do nothing effective, and thereby make matters worse for the objector. (2) Where the attitude of the audience, or a sizable portion thereof, is so distinctly hostile and positively threatening as to make it dangerous for the party or his counsel to raise the objection. Neither of these possible exceptions is present in this case, and we are therefore not authorized to sustain the stated assignment.

Affirmed.