State v. Medlicott , 9 Kan. 257 ( 1872 )

The opinion of the. court was delivered by

Kingman, C. J.:

The appellant John J. Medlicott was duly charged with murder in the first degree by poisoning Isaac M. Ruth. The information was filed in the district court of Douglas county, and ivas on change of venue moved to Anderson county, where a trial was had, resulting in a verdict and a judgment of guilty against the defendant, from which he appeals to this court. Numerous errors are alleged, and the case has been elaborately argued in this court. We proceed to decide such of the errors relied on as are essential; and if the reasons given for our decision are not as elaborate as the arguments, it is not because we have not given anxious and careful attention to the questions raised, such as the gravity' and importance of the matters in issue demanded, but rather because the great size of the record we have been compelled to examine most critically, and the great number of the questions presented and argued, have taken so much time that but little is left in which to give our reasons.

1. jurors-opinions qualifications, I. The first of the errors alleged,, and the one first presented in the order of time on the trial, arose from the rulings of the court in the selection of jurymen. The facts are substantially as follows: C. R. Anderson was sworn, and in answer to questions by counsel for defendant stated that he believed he had formed an opinion on the issue to be tried, and may have expressed such opinion, and could not say it would not take testimony to change it. Counsel for defendant then challenged him for cause. Whereupon the court asked Anderson' certain questions, in answer to which ho stated that the opinion he had formed was based upon newspaper reports only; that it was an impression merely, and not an opinion, and was dependent on the truth of the newspaper account; that he had no knowledge whether that account was true or not; that the impression was not positive or fixed, but dependent upon the truth or falsity of th'e newspaper accounts. The challenge for cause was overruled. Very nearly the same state of facts was elicited in the examination of Thomas Newton as a juror, and the challenge for cause was overruled. J. A. Maghee, in answer to questions of defendant’s counsel, stated'that-he had formed no ’opinion, but that he had a belief that would require testimony 'to change;-could not say it was firmly settled; would wish to be satisfied as to whether his belief was right or not. And again, in answer to questions by the court, stated, that he had formed no opinion or impression as to the guilt or innocence of the accused, “only a belief.” On what “the belief” was •based does not-appear. It'would require testimony to satisfy him that his belief was wrong. This man was challenged for cause, and the challenge overruled.

Each of these jurors was challenged peremptorily, and the defendant having afterwards exhausted all his peremptory challenges was deprived of the right to three peremptory challenges if there .was error in overruling his challenges of these men for cause. Our statute, criminal code, has made ■positive provision for the case, which is but a declaration of a principle generally recognized in the decided cases in other states. It is as follows:

■ “Sec. 205. It shall be good-cause of challenge to a juror that he has formed or expressed an opinion on the issue, or any material fact to be tried.”—Gen. Stat., 853.

The rule adopted by our statute has so frequently been the subject of judicial comment as to leave little room for useful extended observations. Although Anderson at.first stated .that he had an opinion, upon further questioning it appeared clearly that it was an .impression only, and that impression depended on the newspaper account, of the truth of which he had no knowledge. jWe think there was no error in overruling the challenge for cause in his case. ■ An-impression is-not an opinion, and is not made cause for challenge, by. the statute. It was claimed in the argument that the distinction attempted to be drawn between-an opinion and an. impression is technical, fine-drawn,- and unfair, .and seems not to be treated .with great respect by the text-writers. Yet we find that, the .distinction has .very generally, -been recognized.- by the courts; and seems to be founded in reason. , .In .one of the earliest .cases, and one very ..generally referred to, the juror stated that he had frequently .thought and declared the defendant guilty, if-the statements he heard were true; that he did .not know whether they were so, but only thought from ,the .great..clamor which had been made that, it might be. possible they, were true; that.hehad.no prejudice for. or against the defendant. He was admitted as. a juror, Chief Justice, Marshall observing, .that .“light. impressions,, which .may be. supposed to yield to the testimony that may be offered, which may'leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror;.but that those strong and deep impressions, which will close the mind against the testimony-that may be offered in opposition-to them, which willcombat that-testimony, and resist its force; do constitute a sufficient objection to him.” 1 Burr’s, Trial; 416. Tested by these conditions, and we cannot say that Anderson was not a proper juror. There is nothing to show bias or prejudice. There was no opinion formed. He had read about the case in the newspapers, and what he had read had made some impression, but not such as to .prevent his j udgment from being governed by the testimony in the case, and giving to it a fair and just consideration. In these times it would be-difficult to find men fit to sit upon a jury who -had not some impression as to the case, derived from newspaper accounts, where the alleged crime was of such a character as to challenge the attention of the public. As was observed by Cooley, J., in Holt v. The People, 13 Mich., 224, “To require that jurors shall come to the investigation of criminal charges with minds entirely unimpressed by what they may have heard in regard to them, or entirely without information concerning them, would be in many cases to exclude every man from the panel who is fit to sit there.” "With the present means of information, the facts or rumors concerning an atrocious. crime - are, in - a very few hours, or few days at the. farthest, spread before every man of reading and intelligence within the district from which jurors., are. to be drawn;, and over the-whole country; if "the atrocity be especially great. And. there are some crimes so great and striking that even the most ignorant will have information and impressions in-regard to them; and the rule as stated, applied to such cases; would render the impanneling of a jury for their trial “impossible; and make their - very enormity a complete protection from - punishment.” So in this case, the impression that the juror had received from' the reports in the-papers did not indicate-a state of mind that would, preclude, an .-impartial examination of the facts when presented in the form of legal testimony. It is admitted by every one that an impartial jury is imperative; but impressions, slight and fugitive in their character, such as every one forms from reading the daily press, on nearly every crime that is committed, cannot be held as rendering such persons unfit for jurors; otherwise only the most ignorant Avould be admitted to the jury-box, a result not desirable, and most dangerous to those charged with crime, and who are not really guilty. It is admitted that the authorities on this point are not harmonious. Sustaining the decision, reference is made to The State v. Potter, 18 Conn., 166; Smith v. Evans, 4 Ill., 79; Gardner v. The State, same, 85; Leach v. The People, 53 Ill., 311; Stout v. The People, 4 Parker’s Crim. R., 71; The State v. Kingsbury, 58 Maine, 238; Morgan v. The State, 31 Ind., 193. The challenge as to Thomas Newton depends upon a state of facts so similar to that just decided that nothing further need be said.

Maghee’s position was somewhat different. He had formed no impression or opinion, but had “a belief” as to the merits of the case. Now, whether a belief may or may not be stronger than an opinion, is a question we need not decide, for it is apparent to us that Maghee considered his belief as more evanescent and less fixed than either an impression or opinion, and it is the condition of his mind as to the matter at issue that we are to determine, and not the accuracy of the terms that he used. In this view he was a good juror. We do not intend to say that a belief would not in any case be a good cause of challenge, because in most cases where correctly used in such a connection the term indicates a persuasion of the mind to the truth of a proposition founded upon evidence, and might not only include opinions, but go much farther than that word indicates; but as this man had no opinion we must infer, as we do from the whole examination, that he used the term .as showing a' much weaker condition of his mind as to the issues to be tried .than the wmd opinion signifies. The court correctly overruled the challenge to this j,uror ..for cause. - .

2. witnesses; ítomationm" II. The second error alleged is the ruling of the court, allowing witnesses for the prosecution whose names were not indorsed upon the information to testify over defendant’s objection. This point was settled in the case of The State v. Dickson, 6 Kas., 209, and there is nothing in this case to make it an exception to the ruling therein made, and on the authority of that case it is decided that the court ruled correctly.

3. Dying declarations; writings,’etc/" admissibility. III. The next error alleged is the admission in evidence of the entry in the book marked “Kansas Tribune,” on pages 18 and 19, as a dying declaration of Ruth. It was in testimony that the wife of deceased had on the 26th of April gone to Leavenworth; that the book wag among the clothing of deceased, lying upon his coat on the piano; on the coat and book was his vest, and on his vest was his pantaloons. The book was found with the tongue of the cover tucked under the loop, in the situation described, on the morning Ruth was found dead, the 27th of April 1871. ' The writing on pages 18 and 19 was proven to be in the handwriting of Ruth, and the book identified as belonging to him. It was written with a pencil, and is as follows:

“ Darling- : The Doctor—I mean Dr. Medlicott—gave me a quinine powder Wednesday night, April 26. The effects are these: I have a terrible sensation of a rush of blood to the head, and my skin burns and itches. I am becoming numb and blind. 1 can hardly hold my pencil, and I cannot keep my mind steady. Perspiration stands out all over my body, and I feel terribly. The clock has just struck eleven, and I took the medicine about 10.30 P. m. I writejbjs.sp that if I never see you again you .may- have my body examined and see what the matter is. Good-bye, and ever remember my last thoughts were of you. I cannot see to write more. God bless you, and may we meet in heaven.

“ Your loving Hubbie, I. M. Ruth.”

It has been shown that this letter was written by Ruth in a book which he usually carried with him. We will assume that it was sufficiently shown that it was written on the night of Wednesday, the 26th of April 1871; but the question. remains, was it written under such circumstances as authorized it to be read as evidence? While the particular circumstances of this case are novel, and no precedent is found presenting the same peculiarities, still the principles on which it should be admitted or rejected are “well defined, marked and clear, founded upon a plain reason, and'sustained by uniform authority.” It is a general rule that testimony must be given under the sanctity of an oath; that it must be of fads of which the witness has knowledge, otherwise the testimony is rejected as hearsay. An exception is made to this rule as to declarations, called in the law-books, “dying declarations.” In such cases certain rules are laid down with such exactness as to leave little room for mistake, and wherever there has been a mistake' the error has arisen, from a misapplication of the law to the facts, rather than from, any misunderstanding of the principles that control the admission of the testimony. These rules have been adopted to guard against the manifest danger to human life that is so liable to arise from the admission, as. evidence, of declarations not made under the sanction of an oath, and not offering to the party to be affected by them an opportunity of cross-examination, or to call attention to omitted facts, that if stated might modify or completely overturn the inference drawn from the declarations as made. / Such declarations therefore are admissible only, where the death of the person who made the declaration is the subject of the charge, and where the circumstances of the death are the subject of the dying declaration. .They are admissible only where the person making them is in articulo mortis, and in, the full belief that he is about to die./ It may be affirmed that no well-considered case has varied froin these rules, and that the_t§ndency is to greater stringency^ rather than to any relaxation in applying them to cases. It is the last point in the rules indicated that is most important in this case, in' the view we have taken of it, and reference is here made to a few of the leading cases thereon, and brief quotations made from them, as illustrating the rule by the remarks of eminent judges who have had occasion to apply the rule:

“Dying declarations are made in extremity, when the party' is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath, administered in a court of justice.” Ch. Justice Eyre, in Woodcock’s case, 1 Leach, 502.

In a very recent case the decision shows the care which courts should exercise in admitting such testimony, and the judge who delivered the opinion said: “Dying declarations ought to be admitted with scrupulous, and I had almost said with superstitious, care. They have not necessarily the sanction of an oath; they are made in the absence of the prisoner; the person making them is not subjected to cross-examination, and is in no peril of prosecution for peijury. There is also great danger of omissions, and unintentional misrepresentations, both by the declarant and the witness, as this case shows. In order to make a dying declaration admissible there must be an expectation of impending and almost immediate death from the causes then operating. The authorities show that there must be no hope whatever. In this case the deceased said originally ‘she had no'hope at present.’ The clerk put down that ‘she had no hope.’ She said in effect when the statement was read over to her, ‘No, that is not what I said, nor what I mean. I mean that at present I have no hope,’ which is, or may be, as if she had said, If I do not get better I shall die.” All the court were of the opinion that the evidence was inadmissible. Regina v. Jenkins, Law Rep., 1, C. C. R., 191.

“No matter how strong the expression of the certainty of death may be, if there be any evidence of hope in the language or actions of the declarant his statements will be rejected.” Morgan v. The State, 31 Ind., 199.

“Testimony of this character is only admitted from necessity, and an abuse of it is guarded against by the law with most minute particularity. There is no one principle better established than that such declarations shall not be received unless the proof dearly shows that the deceased was in ex— trends, (perhaps the words in articulo mortis, which are used by some of the authorities to express this condition, are more accurate,) and that he or she at the time of making them was fully conscious of that fact, not as a thing of surmise and conjecture, or apprehension, but as a fixed and inevitable fact.” Smith v. The State, 9 Humph., 9. See further on this subject, 1 Phil, on Ev., ch. 7, § 6, and 1 Greenl. on Ev., §§ 156, 157, 158; Campbell v. The State, 11 Ga., 351.

Stich are the decisions on the admission of this testimony. Admitting as we do that it was made apparent that this letter of Ruth was written on Wednesday night, the 26th of April 1871, and that on the next morning he was found dead in his bed, and conceding that it was sufficiently proven that he died of poison, is it satisfactorily shown that when he wrote he was fully aware that the hand of death was on him? If so, it must appear from the' letter itself, for all the extraneous evidence that was admitted both before and after this letter was road tends to show that he was not without hope. In the next room was his step-son, a youth fifteen years old. The house was surrounded by inhabited dwellings. At quarter before eleven the witness Apitz saw him sitting in his room apparently in pain, with his vest and pants on, which were found in the morning arranged in an orderly manner on the piano. These facts were in evidence when this letter was offered in evidence. Other facts appeared after its admission, which the judge could not know or take into consideration then, and not to be considered now, but which we may notice hereafter. The only testimony then that in any way shows the condition of Ruth’s miud to be such as to authorize the admission of the writing must be drawn from the writing itself, and the facts above stated. For this purpose the court could examine the writing, but with no better opportunities or facilities for arriving at a conclusion than this court has./ Docs the writing “dearly show” that when it was written the writer had lost all hope of' life ?/ Ruth was not a well man, and this fact is apparent from .his taking medicine. Some ailment was troubling him. When he' wrote it is evident that he had grave suspicions, that they were strong enough to induce him to take such precautionary measures as would lead to an examination if his suspicions should prove correct, and at the same time would leave within his control the evidence of his suspicions if they should prove groundless. His sufferings were evidently great. He was not able to account for them; his fears were aroused; horrible doubts filled his mind, adding to the tortures he was suffering from the pains in his body. So much we may infer. But we look in vain for the olear evidence that hope had fled. “I write this so that if I never see you again you may have my body examined and see what the trouble is.”- This is the reason he has left us why the memorandum was written. The language indicates doubt, and provides for a contingency, nota certainty.-''Why did he not call to his step-son, who was sleeping in the next room, and within- a few feet of him? Such a course would seem the most natural one, as he could talk freely with him, with less trouble and inconvenience than was possible in the method he pursued. It is left to conjecture; and it is possible that should he do so, and in the morning find himself well, it would place him in a somewhat ridiculous position, while the course he did take would cause inquiry if his suspidons should prove well founded, and would avei’t ridicule if hi& feafs were needlessly aroused. But this is speculation. The operations of Ruth’s mind at that time must forever remain unknown to us, as well as its condition; and this is the reason why the writing was inadmissible as a dying declaration. It is suggested that the memorandum shows on its face evidence of failing strength in the writer. A photograph of the letter is attached to the record, and it is not very clear that any inference can be drawn from the chirography. The last sentences are less plainly written than the first. This may result from many •causes, and it may be the result of failing strength. But'it in no way indicates the condition of Ruth’s mind. To> those who see in it the signs that the hand of death was upon him, it must still be silent as to the hope or despair that filled his mind. Again, it is said in argument, that “that species of testimony which universally convinces the intelligent mind ■of the fact alleged ought to be good evidence.” To this ■statement we give a hearty assent;- but-it is not the province ■of a court to admit such testimony except under the sanction of an oath, and subjecting .the witness to the risk of the pains and penalties of perjury, and also bringing him face to face with the accused so that he may have the benefit of a cross-examination. These rules have been found so essential as safeguards in the investigation of truth that they have become fundamental in our system of jurisprudence, and ¡some of them have been placed for greater security in our constitutions. No matter how convincing the testimony may be to the “intelligent mind,” unless it can be presented under fixéd rules it cannot be received. So in this case. The rule is established; judicial decisions have fixed the terms upon which dying declarations can be received, and those rules arc .such as wisdom and experience have suggested as most conducive to the safety of society and the protection of its members.

So far we have considered-the case upon the facts in evidence at the time the memorandum was admitted in evidence. ¡Subsequent testimony in the case tends very strongly to ¡support the conclusion previously arrived at. Not only does it appear that the step-son of deceased slept within easy call in the adjoining room, with other children of the family, a youth -to whom he had spoken kindly at bed-time, but that Ruth had caused a child that usually slept with himself and wife to be removed at bed-time to the room with the other •children, and had caused a lap dog that always slept in an easy chair in the room of deceased to be removed from the room that night. In the morning the door between the rooms was found locked with the key on the side of the door in Ruth’s room. It also appears that deceased had locked this door after Dr. Medlicott had left, and after he had bidden his son good-night. It also appeared that Dr. Rice slept in his house that night with his windows open towards the house of Ruth, from which it was distant ten feet; that from his liability to professional calls at night he was very susceptible to any alarm at night, and that he heard no call of any kind. Surrounded by these facts why did the deceased make no call for help ? The witness Apitz, whose house was but twenty-five feet distant, entered his yard about quarter hour before eleven that night, went close to the window of Ruth’s room, looked in, and saw him apparently suffering. He remained near the, window about five minutes, and thinks he heard, deceased groan. The slightest alarm would have brought - instant assistance, and possibly absolute relief. It is incredible that deceased should have felt a certainty that he was in immediate peril of his life, and not have sought assistance when he knew it was so easy to get it. It is not the way. men act when they feel that they are dying. They want not only aid, but sympathy. They require the kindly acts of their fellows, and those kindly feelings elicited by such circumstances from all mankind. On a motion for a new trial, all these facts had appeared, and on that motion were proper to be considered. It is not necessary that our reasons should be'such as to convince all minds. If it leaves the question in such uncertainty that intelligent men may differ about it, Ahen there was surely no such clear showing that Ruth believed he was dying when he wrote the memorandum as to authorize its admission as a dying declaration.^/ We have reached our conclusions in this case upon the theory of the prosecution that Ruth came to his death by poison. But whether that is so or not, or whether the poison was administered by another, or taken by himself, are questions upon which we do not feel called upon to express our views. As the case must be retried it would be. unwise to -do so.

4. opinions of witnesses; experts. IV. Other objections were taken to the admission of testimony, some of which require notice. Dr. Rice was called as a witness for the defense and testified as to his qualifications as a physician, as to the proximity of his resiA ^ A ' , dence to that of the deceased, the relative location of the windows of the two houses, that he was at his house the night of Ruth’s death, and heard'no call for help. He testified as to the symptoms following the administering of certain drugs, and as to the symptoms described in the book marked “Kansas Tribune,” and upon these points only. On his cross-examination he stated that he had not heard the testimony of all the physicians who had testified as to the facts of the case. He was then asked the question, “From the medical testimony which you heard, and the statement of these symptoms, what in your opinion caused the death of I, M. Ruth?” This question was objected to, and answered over the defendant’s objection. The answer was, “An overdose of morphine,” by which he explained he meant a poisonous dose. It does not anywhere appear what part of the' medical testimony he had-heard. The testimony is-manifestly improper. It was drawing a conclusion from a part of the testimony, and this is never allowable. There is some-conflict in the authorities as to whether it is ever proper to-permit a witness to draw an inference from the testimony,, when he has heard it all, but the weight of the authorities-seems to be that he may testify as an expert if he has heard all the testimony in the case, on the point to which the question is directed; but whether such a course is permissible, or the opinion of the expert must be shown by hypothetical questions, the course pursued in this case is equally objectionable. But it is claimed that in cross-examination such latitude is allowable to test the intelligence of the witness. The fallacy of the reasoning is obvious. Neither the court, nor the jury, nor counsel, knew on what part of the medical testimony the opinion of the witness was founded, therefore the answer formed no criterion of the intelligence of the witness, or his capacity to form a correct judgment. Had it appeared what part of the testimony the witness had heard, there would have been some plausibility in- the argument; but as the question was asked it ■afforded no basis whatever. It would be as sensible to test a' person’s knowledge of mathematics by asking him the sum of two and an unknown • quantity, almost known only to’ himself. The case of The State v. Reddick is referred to’by counsel as authority to support the-ruling of the court on this question; but there'is a total misapprehension of the decision in that case, or it could not be claimed as sustaining the admission of Dr. Rice’s testimony. In Reddick’s case a definite hypothetical question was asked of the witness on his cross-examination, and his opinion sought as to the sanity of the deceased in the facts as stated in the question. This was held allowable on cross-examination, the witness having previously shown his qualification to testify as an expert, and having already testified on the very question of the prisoner’s insanity. Following the illustration already used, and it may bo said that' in Reddick’s case the witness was dealing in known quantities, known to the court, jury, and counsel, as well as to the witness; therefore his answer would be a test of his intelligence. There is nothing in that case that justifies the asking of the question or in permitting the answer of Dr. Rice. That the answer wa¡? of serious importance is not denied. It was of great weight on one of the vital and difficult issues raised on the trial.

Substantially the same legal question is involved in the testimony of Dr. Fuller. He was asked a similar question under very much the same state of facts on direct examination. The observations made on Dr. Rice’s testimony are applicable to that of Dr. Fuller, and it is not deemed important to notice more particularly the éxact circumstances under which it was given. Many other objections are noticed in the brief of appellant, to the admission or rejection of evidence, but as most of them are not well founded, and others are not of importance, and not likely to occur On another trial, no further notice will be taken of them.

5. instructions should be appiicabie. V. The instructions given by the court were very full, and generally accurate. They have been commented on at a great length! and particular ones have been subjected , . ... -,. 'i _ to very searching criticism, it will only bo necessary to make some remarks on those particularly pointed out as obnoxious, though we are not satisfied that there is any error that would justify us in sending the case back for a new trial were it not for the causes heretofore mentioned. Our observations will bo brief and only directed to those points where it will be wise to make modifications on another trial.

It seems to this court that there was no necessity for the first and second instructions given at the instance of the counsel for the state. That they are correct as law is not questioned. That they were not calculated to assist the jury in deciding on the issues submitted to them, seems plain,,Unless there is some cause not apparent in this case, such instructions ought to be omitted.

Again, in the charge of the court is this statement: “A few years ago it was a common error to suppose that certain vegetable poisons left no trace exclusive of any other symptoms of disease; but at present such progress has been made in analytical chemistry that it is almost as easy to discover vestiges of vegetable as of mineral poisons.” "We cannot say that this is not true. It is a fact lying more especially in the domain of another profession. But such authorities as are in reach of this court would justify the remarks that the learned judge was led into error in his statement-. 2 Beck’s Med. Jur., 416, 419, 420; Wharton <fc Stille’s Med. Jur., § 1120. These authorities are positive, and against the statement made in the charge. The same conclusion may without violence be drawn 'from the medical testimony in this case. The most that we feel justified in saying about it is, that we must withhold our assent from it until better advised. The statement must have had weight, when taken in connection with the rest of the paragraph, in giving the jury confidence in the chemical analysis that was in evidence, and which was attacked on the part of the defense by testimony of a high character.

A single remark as to instruction No. 40, asked by the defendant and refused: A portion of the law in that instruction is elsewhere given, but we fail to observe in any part of the charge any notice of the effect on the mind of the prisoner of the perilous position in which he was placed, and the great care which should be taken in weighing admissions made under such circumstances. Many of the instructions asked by the defendant and refused are given elsewhere, and some of them are couched in too strong language, and all such were properly refused.

On the first question decided Mr. Justice Valentine does not concur with the other Justices of the court.

For the reasons.given the.motion for a new trial should have been sustained; wherefore the judgment is reversed with directions to award a new trial.

Brewer, J., concurring.