State v. Buck

127 P. 631, 88 Kan. 114, 1912 Kan. LEXIS 24

• Court: Supreme Court of Kansas
• Decided: November 9, 1912
• Docket: No. 17,884
• Status: Published

Opinion

The opinion of the court was delivered by

Benson, J.:

It is contended that the information is not sufficiently direct and certain wherein it charges, poisoning by the administration of “cyanide of potassium and hydrocyanic acid, and also other drugs and poisonous substances to this county attorney unknown.” It is argued that allegations such as the one. italicised are allowed only upon the ground of necessity, and that the necessity did not exist in this case because the results of the autopsy were known before the information was filed.

“It is sufficient to allege that a murder was committed in some way and by some means, instruments, and weapons to the grand jury unknown, when the circumstances of the case will not permit of greater certainty of statement.”' (Wharton on Homicide, 8d ed., § 563; Commonwealth v. Webster, [5 Cush.] 59 Mass. 295; Olive v. The State, 11 Neb. 1, 7 N. W. 444.)

The information was good upon its face. There was no evidence (if that were admissible) that the county attorney had knowledge of the names of other drugs and substances designated as unknown, and the court, instructed the j ury that under the evidence a verdict of guilty could' not be returned unless cyanide of potassium or hydrocyanic acid was administered. It can not be held either upon .the face of the information or the evidence that the charge was fatally defective.. Even where the giving of one kind of poison is alleged,, and another kind proven, the indictment is maintained for the kind of death is the same. (2 Hale’s Pleas of the Crown, 185; 2 Bishop’s New Criminal Procedure,. §514.)

Complaint is made of the admission of the declaration of Mrs. Buck that the doses given to her by the appellant in the last three days of her life burned her stomach. These exclamations of present pain and suffering were accompanied by a wry face, sudden sickness, and vomiting, and were admissible within the principles stated in Betterment Co. v. Reeves, 77 Kan. 111, 93 Pac. 627, and 3 Wigmore on Evidence, §§ 1718, 1719.

It is contended that there was érror in allowing the brother and sister of the deceased to testify concerning the doses of dark thick liquid causing nausea referred to above, and especially in admitting evidence by comparison of odors tending to prove that this consisted of ergot and other drugs. These doses were administered by the appellant himself at intervals for two days preceding the day of her death, at times when, to ordinary appearances, she was not greatly indisposed. The acts of the appellant in this sequence of events were admissible as parts of a connected transaction. It is suggested that this testimony tended to prove a crime different from the one charged, but even if it did that would be no reason for its exclusion- if it also tended to prove the charge of' poisoning, or to show intent or motive. It is sufficient if the testimony is referable to the point in issue or tends to exhibit the res gestee or to establish a chain of circumstantial evidence in respect to the act charged. (Lewis v. The State, 4 Kan. 296; The State v. Adams, 20 Kan. 311, 322; State v. Ames, 90 Minn. 183, 96 N. W. 330; People v. Harris, 136 N. Y. 423, 33 N. E. 65.)

The testimony of the druggist that appellant requested him not to file the prescription presented and filled on August 23 is not too remote in connection with the treatment administered afterward and the attendant circumstances. Evidence tending to show the poisonous effects of ergot in large doses or in repeated small doses was properly received to show the properties of the drug. This tended also to answer the suggestion of the appellant that the testimony was offered to prove another offense.

An interesting question of evidence is presented upon the comparison of odors. A compound the same as that prescribed by Dr. Buck on August 23 was prepared during the trial, and witnesses who had noticed the smell of the doses given to Mrs. Buck were requested to smell of this compound and were asked how the odor compared with that of the doses so given, and whether the smell was the same. It is insisted that the admission of this testimony was erroneous.' How may an odor be described by a witness and communicated to the jury? Wharton says: “Opinion, so far as it consists of a statement of an effect produced on the mind, becomes primary evidence, and hence admissible whenever a condition of things is such that it can not be reproduced and made palpable in the concrete to the jury. Eminently is this the case with regard to noises and smells.” (1 Wharton’s Criminal Evidence, 10th ed., § 459.) If one is asked to describe an odor the answer ordinarily is by comparison, for example that it was like vinegar, or smoke, or other article supposed to be familiar or better known. In Conner v. The State, 6 Tex. App. 455, evidence of a witness that he smelled chloroform in a room was held admissible although the objection here made was not discussed. Similar rulings have been made respecting the smell of spirituous liquor, extending even to vomit wherein the odor appeared. (Marschall v. Laughran, 47 Ill. App. 29.) The principle upon which such evidence is allowed is stated in State v. Shinborn, 46 N. H. 497, that is:

“On the ground that it came within that class of cases where evidence is received from necessity, arising from the impossibility of stating those minute characteristics of appearance, sound, and the like, which, nevertheless, may lead the mind to a satisfactory conclusion, and be reasonably reliable in judicial investigations. Among instances of this class, forming an exception to the general rule, is the proof of identity in a great variety of cases; such as the identity of person, handwriting, animals, and inanimate obj ects; and so where the identity is detected by the ear, or by the sound of the human voice, of a musical instrument, the discharge of a pistol, and the like. . . . In these and an infinite variety of other cases, the conclusion is drawn from evidence addressed to the 'eye or ear or both, and which, from its very nature, can not be described to another.” (p. 501.)

The same reasoning applies here. Although sight may be considered more reliable, evidence afforded by other senses is not excluded. (17 Cyc. 81.) Its weight must be left for the jury.

Hypothetical questions addressed to professional witnesses were objected to on the ground that they invaded the province of the jury. A question to Dr. Trimble, a pathologist, after including a statement of material facts which the evidence tended to prove, concluded with the following:

“Q. Considering that these were her symptoms and conditions on Saturday, Sunday and Monday, immediately prior to her death, and considering further in the same connection that the facts revealed by the postmortem examination were those testified to by you to-day, have you an opinion as to what caused her death?”

In support of an objection to this question it is said that an expert witness can not be permitted to testify to a.matter which is directly in issue; that the judgment of witnesses can not be substituted for that of the jury. If this be the rule it has no room for operation here. The issue to be decided was whether the death of Mrs. Buck was caused by poison administered by the appellant. To sustain the charge the state was required to prove the fact of death by poison, but that alone would not prove the guilt of the accused. It must also be shown that he gave the poison. It seems to be argued that while the witness might properly give his opinion as to what could or might have been the cause of death, it was error to allow him to say what the cause really was. This distinction made by some courts was referred to in Commercial Travelers v. Barnes, 75 Kan. 720, 90 Pac. 293. Comments on this .question in that opinion are deemed pertinent but repetition is not necessary here. A question asking for an opinion upon the cause of death based upon a given hypothesis or upon personal knowledge of the conditions, or both, is one that a properly qualified witness may answer. (The State v. Hatch, 83 Kan. 613, 112 Pac. 149; Simon v. The State, 108 Ala. 27, 18 South. 731; Everett v. The State, 62 Ga. 65; State v. Smith, 32 Maine, 369; Eggler v. The People, 56 N. Y. 642; Commonwealth v. Crossmire, appellant, 156 Pa. St. 304, 27 Atl. 40; Gran v. Houston, 45 Neb. 813, 64 N. W. 245; Rogers on Expert Testimony, 2d ed., p. 49.)

Brief criticisms of opinions holding otherwise,' based upon the distinction between what caused and what might or could have caused death, will be found in 5 Wigmore on Evidence, under section 1976.

Objections to other hypothetical questions asked by the county attorney are sufficiently answered by what has just been said.

On cross-examination a hypothetical question was asked embodying only a part of the facts and symptoms embraced in the question asked by the state, and an objection that the hypothesis did not include all the material facts in evidence was sustained—we think‘erroneously. Great latitude is allowed in such cases to test the intelligence, discernment and capacity of the witness, that the jury may determine the value of his testimony. (The State v. Reddick, 7 Kan. 143.) To this end it has been said that questions may be asked leaving out facts assumed on direct examination. (2 Elliott on Evidence, § 1124.) A careful examination of the abstracts, however, has convinced the court that no prejudice re-suited from this ruling, since upon the Whole cross-examination, conducted at great length, the witness testified upon the matters in detail embraced in the question, and admitted that he did not know whether death would have been possible from hydrocyanic poisoning without any of the symptoms named. Error in such rulings is not necessarily fatal. The statute provides:

“On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial fights of the parties.” (Crim. Code, § 298.)

The court in substance instructed the jury that a verdict of guilty could not be' returned unless they found that cyanide of potassium or hydrocyanic acid, or both, were actually administered by the defendant, knowingly and willfully, with intent to take the life.of Mrs. Buck; that these substances were poisons; and that the deceased came to her death by means of one or both of these poisons, or by means of one or both of them and also ergot or cotton root or both. Error is alleged because the court did not in this connection inform the jury that it was necessary to find that ergot or cotton root were poisons, nor direct them in what manner the evidence relating to these substances should be considered. The effect of ergot or cotton root alone is not very important if one or both of the preparations of cyanide, taken alone or together with these drugs, caused death; and the court stated that unless cyanide in one of the forms named was given there could be no conviction. If there was any error-in these instructions it is one of which the appellant has no cause to complain.

An objection to the verdict because it did not state the kind of poison is without merit. Such a finding is not required.

It is argued that the evidence was insufficient to convict. This argument is based largely upon the fact that only a trace of cyanide was found in the body, and that the pathologist produced by the state testified that death might have resulted from other causes.

The failure to produce further proof of the finding of cyanide in the body, although sulpho-cyanide, as we have seen, was found in excess quantities, is accounted for by the decomposing process referred to in the statement. The possibility that death resulted from some other cause did not require an acquittal if upon all the evidence the jury were satisfied of his guilt beyond a reasonable doubt. (Cox v. The People, 80 N. Y. 500, 516.) Neither is proof of motive indispensable when the jury is so satisfied of guilt without it. (The State v. Dull, 67 Kan. 793, 74 Pac. 235.)

There was competent evidence tending to prove every material fact necessary to support the charge. A further review of the evidence would necessarily be lengthy and is believed to be unnecessary. The verdict approved by the district court must stand.

The judgment is affirmed.