Plaintiff in error Dewey was convicted of murder in the second degree under an indictment charging murder in the first degree of his wife, Margaret Dewey.
Plaintiff in error and his mother were jointly indicted. The first trial resulted in a mistrial. On the second trial the mother was acquitted and Dewey convicted, as above stated.
The sole question presented is whether or not the evidence was legally sufficient to warrant the conviction.
The record shows that Margaret Dewey came to her death by a gun or pistol shot wound inflicted at close range; that the bullet entered her body at the left breast close to
the nipple, ranged downward and came out the back, Where that bullet went to is not shown.
Dewey reported the death on the morning after he said it occurred. Investigation developed that there was practically no blood on the body, a very small spot of blood on the floor where the body was lying, but there were blood splashes on the wall; that the deceased was robed only in a night-gown when she came to her death. There were powder burns on her left breast and on her left hand. The pistol which was found near the body contained one unexploded cartridge and two empty shells. A bullet had passed through a closet door 3 feet 10 inches from the floor in the room where the body was found. That bullet passed through the door and through some clothing that was hanging inside the closet and dropped from the clothing to the floor during the investigation. Dewey reported to neighbors and to the Sheriff the next morning that about 9 o'clock on the night before he was lying on the floor in front of the fire; that his wife went across the room near to a radio, that he thought she was going to turn on the radio; that he heard the report of a shot and his wife fell; that he got up, looked for his automobile or truck keys and did not find them; that he then covered the body up with a blanket and went to bed and went to sleep. He also told the neighbors and the Sheriff that when the shot was fired his mother, who was sleeping in the house, awakened and asked what was the matter, or something to that effect, and he told her to "go back to sleep," which she did. He got up the next morning and reported what he termed a suicide.
Some other pistol cartridges were found on the floor of the room and Dewey told neighbors and the Sheriff that his wife dropped those when she was loading the pistol.
He had his wife's body prepared for burial, took it to
Arkansas and was later arrested in New Orleans, La., and brought back to Suwannee County for trial.
The record shows that the bullet hole in the closet door was higher from the floor than the place where a hole would have, in all reasonable possibility, been made if made by the same bullet which ranged through the woman's body from the left nipple downward out the back and continuing on to the door.
The jury was justified in reaching the conclusion that there were two shots fired. Dewey only accounted for one shot being fired. Dewey took the stand in his own behalf but made no explanation to the jury of how the homicide occurred.
It is well settled that when a defendant does not take the stand in his own behalf such circumstance is not to be considered as any evidence of guilt, but when a defendant charged with the unlawful homicide of another takes the stand in his own behalf, then the jury may consider what he says and what he may fail to say as bearing upon the merits of the case.
Before Dewey took the stand the Sheriff had testified about the conversation that Dewey had with him in regard to the homicide. When Dewey took the stand in his own behalf the following occurred:
"By Mr. Blackwell: Your name is R.J. Dewey? Ans. Yes, sir.
"Q. Was Mrs. Margaret Dewey your wife? Ans. She was.
"Q. You had been married to her about how long?
"A. Three or four years.
"Q. Did you kill Mrs. Margaret Dewey? Ans. No, Sir.
"Q. Did you assist anyone to kill her? Ans. No, Sir.
"Q. You heard Sheriff Cannon testifying yesterday
about the statements made by you as to her killing herself; is that statement substantially correct?
"Ans. I don't understand the question.
"Q. You heard the Sheriff testify yesterday? Ans. Yes, sir.
"Q. Did you hear him say that you made a statement regarding Mrs. Dewey killing herself? Ans. Yes, sir.
"Q. Was that statement substantially true?
"The State objects to the question upon the ground that it is not the proper way to ask the question.
"The Court remarks that he cannot direct counsel how to ask his questions.
"A. I still don't understand the question.
"By the Court: The question is, You heard the Sheriff testify as to what you told him; now is what the Sheriff said that you said to him substantially true?
"Q. What I told him about what?
"By the Court: What you said about your wife killing herself.
"The witness did not reply.
"By Mr. Blackwell: Did you tell the Sheriff that your wife killed herself?
"A. Yes, sir.
"Q. Did you tell him the position in which she was standing when she killed herself? Ans. I don't remember.
"Q. Do you remember in what position she was standing when she shot herself?
"A. I did not see her kill herself. I saw her with the gun in her hand, but I am a little turned around in here as to directions. When I saw her with the gun in her hand, she was facing the door kind a towards the double bed in the house. I did not see her shoot, and I could not say how she was standing.
"Q. Did you hear a report of a gun?
"A. A very dull report.
"Q. Your home out there faces what direction?
"A. It is kinda catacornered and faces West and North. But a little more West than North.
"By Judge Kelley: Who was there in your home when this happened?
"A. My wife, my mother and myself."
It will be noted that Dewey did not even testify that the statement which he had made to the Sheriff was true.
In the case of Kersey v. State, 73 Fla. 832, 74 So. 983. Mr. Justice SHACKLEFORD, speaking for the Court said:
"Charles B. Kersey was indicted for the crime of murder in the first degree, tried before a jury, convicted of the crime of murder in the second degree and sentenced to confinement at hard labor in the State Prison during the remainder of his natural life. Before taking up for consideration the errors which have been assigned and argued before us we think it advisable to state that the evidence adduced establishes the fact that Edith Kersey, for causing whose death by shooting her with a shot gun the defendant was placed on trial under an indictment, charging him with the crime of murder in the first degree, was the lawful wife of the defendant and they were living together at the time of Edith Kersey's death as husband and wife, and had been so living together ever since the consummation of their marriage, during a period of about six weeks. The evidence further establishes that Edith Kersey came to her death from a wound in her head which was inflicted by the discharge of a shot gun loaded with powder and small shot, and that at the time of such discharge the deceased was lying in bed in the home occupied by her and her husband, the defendant. Upon these points the evidence is uncontradicted."
Again, in the course of the opinion Justice SHACKLEFORD said:
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Plaintiff in error Dewey was convicted of murder in the second degree under an indictment charging murder in the first degree of his wife, Margaret Dewey.
Plaintiff in error and his mother were jointly indicted. The first trial resulted in a mistrial. On the second trial the mother was acquitted and Dewey convicted, as above stated.
The sole question presented is whether or not the evidence was legally sufficient to warrant the conviction.
The record shows that Margaret Dewey came to her death by a gun or pistol shot wound inflicted at close range; that the bullet entered her body at the left breast close to
the nipple, ranged downward and came out the back, Where that bullet went to is not shown.
Dewey reported the death on the morning after he said it occurred. Investigation developed that there was practically no blood on the body, a very small spot of blood on the floor where the body was lying, but there were blood splashes on the wall; that the deceased was robed only in a night-gown when she came to her death. There were powder burns on her left breast and on her left hand. The pistol which was found near the body contained one unexploded cartridge and two empty shells. A bullet had passed through a closet door 3 feet 10 inches from the floor in the room where the body was found. That bullet passed through the door and through some clothing that was hanging inside the closet and dropped from the clothing to the floor during the investigation. Dewey reported to neighbors and to the Sheriff the next morning that about 9 o'clock on the night before he was lying on the floor in front of the fire; that his wife went across the room near to a radio, that he thought she was going to turn on the radio; that he heard the report of a shot and his wife fell; that he got up, looked for his automobile or truck keys and did not find them; that he then covered the body up with a blanket and went to bed and went to sleep. He also told the neighbors and the Sheriff that when the shot was fired his mother, who was sleeping in the house, awakened and asked what was the matter, or something to that effect, and he told her to "go back to sleep," which she did. He got up the next morning and reported what he termed a suicide.
Some other pistol cartridges were found on the floor of the room and Dewey told neighbors and the Sheriff that his wife dropped those when she was loading the pistol.
He had his wife's body prepared for burial, took it to
Arkansas and was later arrested in New Orleans, La., and brought back to Suwannee County for trial.
The record shows that the bullet hole in the closet door was higher from the floor than the place where a hole would have, in all reasonable possibility, been made if made by the same bullet which ranged through the woman's body from the left nipple downward out the back and continuing on to the door.
The jury was justified in reaching the conclusion that there were two shots fired. Dewey only accounted for one shot being fired. Dewey took the stand in his own behalf but made no explanation to the jury of how the homicide occurred.
It is well settled that when a defendant does not take the stand in his own behalf such circumstance is not to be considered as any evidence of guilt, but when a defendant charged with the unlawful homicide of another takes the stand in his own behalf, then the jury may consider what he says and what he may fail to say as bearing upon the merits of the case.
Before Dewey took the stand the Sheriff had testified about the conversation that Dewey had with him in regard to the homicide. When Dewey took the stand in his own behalf the following occurred:
"By Mr. Blackwell: Your name is R.J. Dewey? Ans. Yes, sir.
"Q. Was Mrs. Margaret Dewey your wife? Ans. She was.
"Q. You had been married to her about how long?
"A. Three or four years.
"Q. Did you kill Mrs. Margaret Dewey? Ans. No, Sir.
"Q. Did you assist anyone to kill her? Ans. No, Sir.
"Q. You heard Sheriff Cannon testifying yesterday
about the statements made by you as to her killing herself; is that statement substantially correct?
"Ans. I don't understand the question.
"Q. You heard the Sheriff testify yesterday? Ans. Yes, sir.
"Q. Did you hear him say that you made a statement regarding Mrs. Dewey killing herself? Ans. Yes, sir.
"Q. Was that statement substantially true?
"The State objects to the question upon the ground that it is not the proper way to ask the question.
"The Court remarks that he cannot direct counsel how to ask his questions.
"A. I still don't understand the question.
"By the Court: The question is, You heard the Sheriff testify as to what you told him; now is what the Sheriff said that you said to him substantially true?
"Q. What I told him about what?
"By the Court: What you said about your wife killing herself.
"The witness did not reply.
"By Mr. Blackwell: Did you tell the Sheriff that your wife killed herself?
"A. Yes, sir.
"Q. Did you tell him the position in which she was standing when she killed herself? Ans. I don't remember.
"Q. Do you remember in what position she was standing when she shot herself?
"A. I did not see her kill herself. I saw her with the gun in her hand, but I am a little turned around in here as to directions. When I saw her with the gun in her hand, she was facing the door kind a towards the double bed in the house. I did not see her shoot, and I could not say how she was standing.
"Q. Did you hear a report of a gun?
"A. A very dull report.
"Q. Your home out there faces what direction?
"A. It is kinda catacornered and faces West and North. But a little more West than North.
"By Judge Kelley: Who was there in your home when this happened?
"A. My wife, my mother and myself."
It will be noted that Dewey did not even testify that the statement which he had made to the Sheriff was true.
In the case of Kersey v. State, 73 Fla. 832, 74 So. 983. Mr. Justice SHACKLEFORD, speaking for the Court said:
"Charles B. Kersey was indicted for the crime of murder in the first degree, tried before a jury, convicted of the crime of murder in the second degree and sentenced to confinement at hard labor in the State Prison during the remainder of his natural life. Before taking up for consideration the errors which have been assigned and argued before us we think it advisable to state that the evidence adduced establishes the fact that Edith Kersey, for causing whose death by shooting her with a shot gun the defendant was placed on trial under an indictment, charging him with the crime of murder in the first degree, was the lawful wife of the defendant and they were living together at the time of Edith Kersey's death as husband and wife, and had been so living together ever since the consummation of their marriage, during a period of about six weeks. The evidence further establishes that Edith Kersey came to her death from a wound in her head which was inflicted by the discharge of a shot gun loaded with powder and small shot, and that at the time of such discharge the deceased was lying in bed in the home occupied by her and her husband, the defendant. Upon these points the evidence is uncontradicted."
Again, in the course of the opinion Justice SHACKLEFORD said:
"In order to render our discussion of these two assignments the more readily intelligible, we would state that there were no eye witnesses to the shooting and, as the defendant frankly says in his brief: `It was the theory of plaintiff in error that deceased committed suicide; that she pulled the chair (which was found lying on the floor upon its back near the bed) up near the bed, placed the stock of the gun in the bottom of the chair so as to have the proper range and so that she could hold it and reach it when she was lying down; and that she, with her left hand holding the barrel or muzzle of the gun to her head, with her right hand pushed the broom stick (which was found near the bed) against the trigger of the gun and discharged it.'"
In that case the State relied largely upon circumstantial evidence, the defendant relying upon the circumstances to show that the deceased came to her death by suicide. The circumstances as shown in that case to establish unlawful homicide by the accused were not as strong as were the circumstances in this case.
It appears from the opinion as reported in the case of Sutter v. State, 105 Neb. 144, 179 N.W. 414, that in that case the State relied upon circumstantial evidence no stronger than the circumstances relied on in this case and the conviction was upheld.
The case of State v. Beeson, 155 Iowa 355. 136 N.W. 317, is to like effect.
The evidence adduced is sufficient to meet the rule required in cases where circumstantial evidence is relied upon for conviction. That is, it is not only consistent with the guilt of the accused, but is inconsistent with any other reasonable hypothesis except the guilt of the accused.
It is not necessary that circumstantial evidence so strong
and cogent as to exclude every imaginable possibility except the defendant's guilt, but it is sufficient, if it is so strong and cogent as to exclude every reasonable hypothesis except the defendant's guilt.
It could serve no useful purpose to further discuss the testimony of the other witnesses as it appears in the record.
On examination of the entire record we find no reversible error. Therefore, the judgment should be, and is, affirmed.
So ordered.
WHITFIELD, and BROWN, J.J., concur.
ELLIS, C.J., and CHAPMAN, J., dissent.