State v. Epes , 209 S.C. 246 ( 1946 )

At the September, 1945, term of the Court of General Sessions for Richland County, Samuel C. Epes, the appellant, was tried on an indictment charging him with the murder of his wife, Mary Lee Epes, on January 28, 1945. The appellant offered no testimony, and at the conclusion of the testimony for the State he moved for a directed verdict, which motion was refused. The case having been submitted to the jury, a verdict of guilty of murder with recommendation to mercy was returned. A motion for new trial or judgment of acquittal non obstante veredicto was made and refused, and from a sentence to life imprisonment the case has been appealed to this Court.

The substance of the reasons assigned for reversal of the judgment of the Circuit Court may be thus stated: (1) the evidence was insufficient to sustain a conviction of any offenses; (2) if the evidence was sufficient to sustain any conviction at all, it was insufficient to sustain a conviction of any greater offense than involuntary manslaughter; (3) if the testimony required submission of the case to the jury, the trial Judge committed error in failing to charge on the law of involuntary manslaughter.

The appellant, a resident of Richmond, Va., then a student at Richmond University, and Mary Lee Williams, a resident of Jacksonville, Fla., then a student at the Richmond Division of William and Mary College, met and were subsequently married in Jacksonville on September 5, 1940. No children were born to this union. Following the outbreak of the recent war appellant enlisted in the army, and he later rose to the rank of Lieutenant in the ambulance corps. At the time of his wife's death he was motor officer of an ambulance company stationed at Fort Jackson, S.C.

In the course of his training for overseas duty, the appellant was stationed at various army camps in this country. A small part of the time his wife was with him, the remainder of her time being spent with her parents in Jacksonville, Fla., where she was a part-time teacher in the public schools. In January, 1945, she joined her husband (the appellant) in Columbia following his assignment to duty at Fort Jackson. They moved into a small apartment in Columbia and did light house-keeping. The appellant commuted between Fort Jackson and Columbia, spending his days at the fort and his nights in the city.

The relations of this young couple at all times seem to have been cordial and affectionate, and so far as the testimony discloses there was never the slightest quarrel or disagreement between them during their entire married life. Mr. T.G. Williams, the father of Mrs. Epes, in referring to an inquiry by the police of the City of Columbia, testified: "It seemed that they felt at that time that it was probably a triangle, or something, or a fuss, and she had gone off, and we assured them then, Mrs. Williams and myself assured them that there was nothing of the kind; that to our knowledge the married life of our daughter and Sam Epes had been most happy". Also the letters of the appellant to Mrs. Epes introduced in testimony are unusually affectionate in their expressions.

While they were alone in their little apartment in Columbia on the night of January 28-29, 1945, tragedy intruded, leaving Mary Lee Epes dead and her husband, the appellant, now charged with her murder.

During the next day, January 29, 1945, the appellant kept his own counsel about what had occurred on the preceding night and went about his usual affairs; but on the night of the 29th, he went to the police station in Columbia and reported that his wife was missing. He said that he had left home early that morning to go to Fort Jackson; that on his way he had brought his wife into the city and left her; and that he had not seen her since. Following the receipt of this information from the appellant, the officers of the law prosecuted intensive searches and inquiries, covering a period of approximately two weeks, in which the appellant himself ostensibly participated, but no trace of Mrs. Epes was found. Finally, however, on February 14, 1945, the appellant made a statement to the effect that his wife had died in their apartment on the night of January 28, 1945, as the result of an overdose of sodium seconal, and that in his panic he had carried her body off in his automobile and buried it in a remote part of the Fort Jackson military reservation. He also went with the officers of the law and showed them the place where the body was buried. He made two written statements detailing the circumstances surrounding the death of Mrs. Epes and the disposition of her body.

The first of the written statements (omitting the formal parts) was as follows:

"First of all: I did not kill my wife; Mary Lee — that's my wife, was menstruating, as has been set forth — was very sick, upset from this condition. She had in her possession sodium seconal which had been given me for this purpose by an army surgeon. We came home Saturday night around 10 to 10:30, approximately, I don't know about it exactly. We had a couple of drinks, not getting intoxicated however and Mary Lee took a couple capsules of sodium seconal. This didn't seem to relieve her pain and discomfort and some time during the course of the evening I believe she took about 10 — about 10. I didn't give them to her. She never used medicine to excess before. Her pulse, I found later, stopped — ceased to beat rather — and she stopped breathing. I was panic-stricken, you might say. I didn't know what to do. I took her out, put the body about a mile outside of camp. I almost went out of my mind. I visited the scene once later to try to summon courage to recover the body and give it proper burial but I couldn't and realized then for the first time what a fool I had been and the position I found myself in. And that's about all. I didn't have guts enough to tell this sooner, as I should have. And that's all. And are there any questions, Major? General, anything you have to say? I didn't call a doctor although I realized later that I should have because I realized that Mary Lee was dead and could only see the position in which I was placed, having her found that way. I am not doing this to alleviate any punishment for myself. I am just trying to save my family and my wife's family blame and publicity and notoriety. I don't care what happens to me."

The second statement (omitting the formal parts) was as follows:

"I made this statement to amplify and further explain some details heretofore unexplained about the death of my wife, Mrs. Mary Lee Epes, on or about 27 January had not planned any such action.

"As previously stated her death was caused by an overdose of sodium seconal, which had been prescribed for relief of menstrual pains. We returned home that Saturday night about 10:30, after having been to downtown Columbia. I gave her two capsules of sodium seconal for relief of her pain as she was menstruating at the time, and fixed a drink for her and myself, hoping that this would help in the relief of her pain as it usually does. Later on, about thirty (30) or forty (40) minutes later, she took one (1) or two (2) more of the sodium seconal capsules with water, having had no relief from the first dose. Later on in the evening, I prepared another drink for each of us, but neither became intoxicated. She either reached and took them or I handed her two (2) more sodium seconal capsules about 11:30 and about midnight, I gave her two (2) more capsules; each time they were taken with water. She still had the stomach pains, and I folded the sofa down and we both laid down. After we were on the sofa, I got a glass of water and I brought her two (2) more sodium seconal capsules, which she took, this being about 12:30. Subsequent to 12:30, we both went to sleep and I was awakened later on by Mary Lee struggling somewhat and vomiting. I got a towel and washed her face off and noted that her pulse was absent and that there was no respiration. Frankly, I was out of my head at this point and didn't know what to do; I apparently did not have sense enough to do the right thing. I had not planned for this to happen; I should have had sense enough to know the danger of this drug. Nevertheless, I was panic-stricken and out of my head, afraid to take Mary Lee to a doctor as I should have done, and I could see only one thing — the danger of my being charged with malpractice and administering drugs, even though I am not a doctor. Some time later, I picked Mary Lee up, and I had some difficulty in managing her. I put a blanket around her, and put her in the back compartment of our car. Prior to this, even though panic-stricken, I had made several tests to see if Mary Lee was actually alive or not and to me there were no signs of life — no pulse and no heart beat or respiration. The body was cold and limp. After putting in the back of the car I spread the blanket over her and proceeded (still possibly out of my head) to get rid of the body in some way. I drove down toward Devine street and realizing that the body would be seen in the back of the car, I stopped on a dark street in front of a church, and transferred Mary Lee to the trunk of the car. In so doing it was necessary to lay the body down on the street and then pick it up and transfer it to the trunk of the car. I mention this fact because the newspaper accounts state that Mary Lee's head was bruised and I didn't have any connection with this. The bruise could only have occurred as a result of picking her up in the apartment, carrying her down the stairs, and transferring her from the back of the car to the trunk. I proceeded out Devine Street, entered Fort Jackson through Outpost No. 1, and proceeded to the site where I put Mary Lee's body. I wish to explain why I put Mary Lee at this location. Having been at Fort Jackson only a little while, I knew nothing about the surrounding terrain, but I had been on the Leesburg Road on a night problem before, and knew that it would be possible to put Mary Lee there. On my way through camp, I picked up a shovel and would have used it to prepare a place for the body, but instead I stumbled upon foxholes and I put Mary Lee into one of these, straightened her arms and legs out in a natural position — arms straightened down by the side of the body in a natural position, and she was lying on her back. After filling in the hole I spread some branches over the area. I was so wrought up and nervous that I could not say exactly what hour this was completed, but upon returning I left the shovel at the dispensary of the 665th Clearing Co., and went into the dispensary to get some belladonna for my heaving stomach, and went home through Outpost No. 1 to Devine St. When I came out of the dispensary a guard passed me, but did not challenge me. At the dispensary I spoke to the ambulance driver on duty, but the CQ was asleep, and the ambulance driver was half asleep. I brought the blanket back to the house. When I got back to the house it was around four o'clock or later. I was weak and had to lie down for awhile. About 8:30 or 9:00, Sunday, I got up and as the blanket had become soiled when Mary Lee vomited, I cleaned it up and hung it out to dry. Later on I cleaned up the glasses and did not eat anything this day, except some ice cream I had. I could not eat. At some hour that night I went to bed, not even folding the bed down, and I arose the next morning (Monday), actually at about 7:05. During the night I realized what a jam I was in and that is when I made up the story I told Monday morning. I actually came down by that restaurant, went to the Post and God only knows what a day I had trying to appear calm and knowing what I had done or what I had not done and what I should have done. Monday night at 8:00 I returned to our apartment, having taught a 6:30 class, and then proceeded with the fabrication which I planned to tell the police. Then I realized what a position I found myself in and it was Monday night that I threw away Mary Lee's large grey purse, hoping it would bear out the story I told the police about her disappearance. About 1:00 that night I went to bed, not sleeping much.

"I want to say again that I did not plan this, but Mary Lee, I know died, and I went out of my head temporarily perhaps, and did not know what to do, and took this awful course. I did not kill her; I did not mean to. I am not guilty of killing her but I am guilty of secreting the body in a moment of weakness and of not being man enough to come forward with information as to its whereabouts sooner than I did."

"I have read the foregoing statement, consisting of two pages, and find it to be true to the best of my knowledge and belief."

The character of the death of Mrs. Epes, whether felonious or otherwise, necessarily was fixed at the moment of death, and it must be determined by a proper appraisement of events occurring in the apartment preceding her death. Events occurring after the event obviously cannot change the nature of something already accomplished. The only source of information as to what occurred in the apartment on the fateful night of January 28, 1945, is the appellant himself, and the only evidence produced as to these events consists of his oral statements and his two written statements containing all of the substance of his oral statements.

Examination of the allegations of the indictment under which the appellant has been brought to trial shows that he is charged with bringing about the death of Mary Lee Epes by a combination of two things: (1) administering or causing to be administered to her "a certain drug and poisonous substance commonly called sodium seconal", and (2) suffocating her by placing a blanket or cloth around her head, placing her body in the trunk of an automobile and closing the top thereof, and placing her body in the ground and covering it with dirt. As to the charge of suffocation, it is not claimed that it has any support at all in the testimony, and even if such claim were made it would be quite impossible to sustain it by anything appearing in the record. Waiving the point raised by the appellant that the State is bound by the allegations of its indictment to the extent of having to prove that death resulted from the combination of the two causes alleged, and assuming, without deciding, that it is only necessary to prove one or the other of the alleged causes, we shall examine into the charge of poisoning by means of sodium seconal.

The charge of poisoning is thus expressed in the indictment: " * * * The said Samuel C. Epes her the said Mary Lee Epes, then and there feloniously, willfully and of his malice aforethought did administer to and caused to be administered to and taken by the said Mary Lee Epes, a certain drug and poisonous substance commonly called Sodium Seconal * * *" The appellant being presumed to be innocent of this charge, there can be no doubt that in order to sustain a conviction of murder the State must produce evidence reasonably tending to show that he intentionally administered or caused to be administered to Mary Lee Epes a dangerous drug, which he knew or had reasonable cause to apprehend was dangerous, in sufficient quantities and at such intervals of time as to endanger her life. We do not think that the State has produced such evidence. As counsel for appellant not inappropriately suggest, not only is there a failure of such proof, but if we impute this much knowledge to the appellant it is more knowledge than the medical profession itself had at the time.

Sodium seconal is one of a class of drugs known as barbiturates, and there are many drugs of this class of varying degrees of potency. The testimony shows that containers in which this drug commonly was being sold did not contain on the labels the word "poison," as is usual in the case of poisonous substances, but merely "Warning, May Be Habit Forming"; and although section 5175, Code of Laws, S.C. 1942 requires all pharmacists, apothecaries or druggists to affix to every bottle, vial, box or other package containing any poison a label, "whereupon shall be either printed or legibly written, with red ink, the name of the poison and the name of at least one antidote, with brief directions as to the mode of using the same", it does not appear that containers of sodium seconal bear labels such as required by this section. This would seem to indicate quite clearly that sodium seconal has not been regarded by the drug profession as a poison at all, much less a death dealing poison.

The testimony of the medical witnesses, some of them allegedly experts on the effects of drugs, is still more convincing. Major Frank L. Milligan of the Medical Corps of the United States Army places sodium seconal in the class with aspirin, and at one place in his testimony, he testified that he had never heard of a case of acute poisoning from the use of sodium seconal until this case. He also stated that prior to September, 1945, several months after the death of Mrs. Epes, he had never read anything to the effect that sodium seconal was an acute poison and had killed anybody. He, however, testified (without giving the source) that his knowledge of the poison drug in this particular case preceded the publication of the article thereabout (appearing in the medical journal). Dr. R.P. Walton, a Ph. D. in chemistry and an M.D., and at present the Professor of Pharmacology at the South Carolina Medical College, was able to cite from his own medical experience only one case of poisoning in which seconal was involved. That was a case in which eleven capsules, half of seconal and half of pento-barbital, were taken, and the result was not fatal. He also testified that an article in the American Medical Association Journal in 1940 on Barbiturate deaths included only one from sodium seconal, and that the article stated that it was the first recorded case of poisoning by seconal. Dr. S. Watson Talbert, a practicing physician in Columbia for twenty-four years, testified that in his own experience he had known only one death from a barbiturate drug, and his testimony did not identify the drug as sodium seconal.

Although appellant's assignment in the army was that of motor officer in an ambulance company, a service doubtless having some connection with the medical corps, yet his duties in no way involved medicine or surgery, but were chiefly concerned with the transportation of the dead and wounded from battle areas. There is no testimony at all tending to show that he had any special knowledge of the effect of drugs, and consequently his knowledge must be judged by the knowledge reasonably to be attributed to the average man. He cannot fairly be charged with as much or more knowledge than was then possessed by experts and specialists in the field of toxicology. We, therefore, think that the testimony of the State fails in this vital and essential particular.

We have not failed to give careful consideration to the other medical and expert testimony in the case relating to the autopsy, the analysis of the vital organs of Mrs. Epes, and the effect, from a theoretical and hypothetical standpoint, of sodium seconal, but there is nothing in this testimony in any way supplying the fatal deficiency above indicated. Indeed, the testimony of Capt. A.L. Vass of the Army Medical Corps, who performed the autopsy, in some respects persuasively corroborates appellant's version of the tragedy. Capt. Vass testified that there were no marks of external violence on the body, and that he found clear evidence that Mrs. Epes was menstruating at the time of her death, just as the appellant has always said. In this connection Capt. Vass in the report of his autopsy said: "The state of the uterus as described grossly and the state of the ovaries indicate that the deceased was menstruating at the time of her death" (this statement the appellant has told all the time, and if he told the truth about some part, he may be telling the truth about it all).

As we understand the situation, the State does not really claim that it has any direct testimony sufficient to sustain this conviction but it insists that there are certain circumstances disclosed by the testimony inconsistent with any reasonable hypothesis other than appellant's guilt as charged in the indictment, and of sufficient weight to justify the verdict found by the jury. We have carefully weighed all of these circumstances, and while some of them raise a suspicion, and doubtless a strong one, yet we cannot bring ourselves to think that they meet the test of proof by circumstantial evidence thus stated in State v. Kimbrell, 191 S.C. 238,4 S.E.2d 121:

"Where it is undertaken by the prosecution in a criminal case to prove the guilt of the accused by circumstantial evidence, not only must the circumstances be proven, but they must point conclusively — that is, to a moral certainty — to the guilt of the accused; they must be wholly and in every particular perfectly consistent with each other, and they must further be absolutely inconsistent with any other reasonable hypothesis than the guilt of the accused. State v.Langford, 74 S.C. 460, 55 S.E., 120; State v. Aughtry,49 S.C. 285, 26 S.E., 619; State v. Hudson, 66 S.C. 394,44 S.E., 968.

"Every circumstances which is relied upon by respondent as material must be brought to the test of strict proof. All of the facts proved must be consistent with each other, and, taken together, should be of a conclusive nature and tendency, producing a reasonable and moral certainty that the appellant and no one else committed the offense charged. It is not sufficient that they create a probability, though a strong one; and if, therefore, assuming all the facts to be true, which the evidence tends to establish, they may yet be accounted for upon any hypothesis which does not include the guilt of appellant, then the proof fails. The reason for this is that all presumptions of law, independent of evidence, are in favor of innocence, and every person is presumed to be innocent until he is proved to be guilty. As has often been stated, it is not sufficient to establish a probability of guilt arising from the doctrine of chances that the fact charged is likely to be true."

Although we do not think the circumstances, either singly or all taken together, are inconsistent with any other reasonable hypothesis than the guilt of appellant as charged, yet there are two matters upon which major reliance is placed by the State, as a part of its circumstantial evidence, which seem to require some special consideration.

As a circumstance tending to prove guilt, and also in order to show motive, the State lays much stress upon an alleged affair between the appellant and a young lady in Louisiana during the period when Mrs. Epes was at the home of her parents in Jacksonville, Fla., and the appellant was assigned to duty in Arkansas and Louisiana during the fall of 1944. Without in any respect condoning or attempting to justify this affair, if there actually were any improper relations, yet we cannot fairly assume to suggest that such a thing is so unprecedented, either in time of war or peace, as to be inconsistent with innocence of the charge of murder as made in this case. The cordial relations always previously existing between the appellant and his wife, the affectionate letters written to her by him during the period that this indiscretion is said to have been in progress, their amicable relations in their little apartment in Columbia, and the statement of Mr. Williams, the father of Mrs. Epes, that the married life of his daughter and Sam Epes had been most happy are quite inconsistent with the idea that the appellant was devising a diabolical scheme to murder his wife in order that he might resume an affair with a woman in Louisiana. If he had desired to be rid of his wife, it is inconceivable that he would have ignored the possibilities of the divorce courts and resorted to such a bungling plan of murder as the use of such a mild and uncertain drug as sodium seconal.

The other matter upon which the State places strong reliance in order to sustain this conviction is the fact that after the death of his wife, the appellant carried her body off and buried it in a hidden place, and thereafter sought to mislead the officers of the law by false information, in order to conceal what had occurred.

The disrespectful treatment by the appellant of the body of his wife after her death and his efforts to conceal her death deserve and have our unbounded condemnation, but our abhorrence of his conduct cannot be permitted to obscure the fact that these were matters occurring after the death of his wife, and that they cannot serve either to add to or take from the criminal responsibility for a death which had already occurred.

State v. Turner et al., 117 S.C. 470, 109 S.E., 119, was in some respects a very similar case. In that case, Mack Turner, one of the defendants, was present when the homicide was committed, but the State failed to prove his active participation. It is shown by the transcript of record, however, that he participated in hiding the body of the deceased by placing it in a deep spot in a river, loaded down with heavy weights tied to the body; that he attempted to mislead the officers of the law, and that he also joined searching parties organized for the purpose of finding the deceased after his disappearance. He was convicted on his trial, but on appeal to the Supreme Court the judgment of the Circuit Court was reversed, and the Court said that "while the whole case raised a suspicion, and a grave one at that" it did not warrant a verdict of guilty. The Court also further said: "His conduct after the homicide cannot convict him of an offense that the State failed to prove".

In like manner, the case now before us raises a suspicion, and a grave one at that, and the disrespect shown by the appellant for the dead body of his wife is so revolting, and naturally arouses such indignation, as almost to unbalance the sense of justice, yet all this cannot fairly serve to convict him of a crime that the State has failed to prove. Although we abhor to the utmost the conduct of the appellant following the death of his wife, we cannot evade our responsibility of requiring the State to prove before it punishes. The Court well said in Crosby v. S.A.L. Ry., 81 S.C. 24,61 S.E., 1064:

"Verdicts cannot be allowed to rest upon mere surmise, conjecture or caprice. The law is moved by material evidence, including proven facts and those presumptions which the law recognizes from motives of public policy and as founded in human experience. A court fails to exercise its high prerogative to administer justice according to law when it permits a verdict to stand which finds no support in the evidence."

We find no way of escape from concluding that the State has failed to prove appellant guilty of murder.

The case was submitted to the jury on the theory that the appellant was either guilty of murder or not guilty, and that no verdict could be found other than one of guilty of murder or not guilty. Before the charge to the jury the following exchange took place between the Court and counsel for the defense:

"The Court: Do you want me to charge the jury on the issue of manslaughter and involuntary manslaughter?

"Mr. Brown: No, sir, I don't think that's an issue in the case. Counsel has said that there is a possibility of the statute about criminal negligence being involved in this case, but I don't think so. On the question of simple manslaughter where there was provocation, I don't think there could possibly be that in this case, and I think, your Honor should charge the jury that he is either guilty of a deadly, intentional, plain, criminal murder, or that he is not guilty. Now, only by the wildest stretch of the imagination can you say that a man ought to watch his wife everytime she takes a pill or everytime my wife takes an anodyne.

"The Court: Unless you wish to argue to the jury along that line, I am not going to charge the jury that. I agree with you."

No objection was made by the State to this theory of the case, and there was apparent general acquiescence in it by counsel on both sides and by the Court. It might therefore be contended with much apparent plausibility that since we have found that the State has failed to prove appellant guilty of murder, he is entitled as a matter of right to an acquittal, but we are not inclined to hold the State bound to that extent by its apparent acquiescence in this theory of the case, because we think there was evidence upon which appellant's conviction of the offense of involuntary manslaughter could be justified, and we think that justice can only be accomplished and the law vindicated by remanding the case to the Circuit Court for the purpose of trying appellant on the charge of involuntary manslaughter.

The conclusion we have reached makes it unnecessary to give any special consideration to appellant's ground of appeal based upon the failure of the Circuit Judge to charge the jury on the law of involuntary manslaughter. Such charge will of course be given upon the retrial that is being ordered.

The judgment of the Circuit Court should be reversed, and the case remanded to that Court for the purpose of trying the appellant, Samuel C. Epes, on the charge of involuntary manslaughter.