Berrie v. State , 55 Okla. Crim. 302 ( 1934 )

I cannot agree with the majority opinion in this case, because to sustain a conviction the state must prove: First, that Mrs. Berrie died of strychnine poisoning; second, that defendant administered the poison himself or procured it to be done by another.

To sustain the state's contention that Mrs. Berrie died of strychnine poisoning, it called Dr. W. W. Bailey, who testified on direct examination that he found a small amount of strychnine in the liver, spleen, stomach, and contents, but not sufficient to measure the quantity, and detailed the symptoms of strychnine poisoning. As to the cause of Mrs. Berrie's death the doctor was asked on cross-examination:

"Q. Doctor, from your experience as a physician, you do not attempt to state to the jury or give the jury any opinion as to what was the cause of the death of deceased, based upon your examination of the portion of the body that you examined and upon what your examination disclosed? A. No, sir."

The state also called Taylor Rogers, state chemist, employed by the state health department, who testified to the symptoms of strychnine poisoning, and that he made tests of the liver, spleen, stomach, and contents of Mrs. Berrie and found traces of strychnine in those organs; that he made an attempt to determine the quantity, but the material he was using was too small and he could not. Later, on cross-examination, he was asked this question:

"Q. Now, you don't pretend to know, as a chemist, the cause of the death of Fannie L. Berrie, do you? A. No, sir."

The state also called Dr. L. S. McAlister, who testified he was called to treat Mrs. Berrie shortly after she was taken sick, and that, after examining her, he remained there a short time, but formed no definite diagnosis of the cause of her sickness; that he recommended her to be taken to a hospital, where he might have better opportunity to make a diagnosis; that, when this was not done, he withdrew from the case. He was asked this question by the county attorney:

"Q. Doctor, from the observation that you had and the history you have of the case, have you formed any opinion as to the cause of the death of Fannie Berrie? A. The history I have now? Q. Yes. A. Well, I formed that in the light of the autopsy findings and the symptoms I gave you, the chances are she died of strychnine poisoning."

Later the witness said:

"A. Without the autopsy, I wouldn't feel justified in making a diagnosis of strychnine poisoning."

On cross-examination, the witness said:

"A. Yes, I think I told them she might have toxin infection, which is, when interpreted in plain English, a type of hysteria. Q. You would not, without these reports, say, as an expert, or as a physician, that she died of strychnine poisoning, in your opinion, would you? A. Taking into consideration my limited experience, no, sir."

The state next called Dr. James G. Rafter, who testified he was called to see Mrs. Berrie shortly after she was taken sick, and detailed the symptoms of strychnine poisoning. He was asked the following question:

"Q. Did you then, doctor, or at a later time, form an opinion as to what caused her illness and death? A. I thought it was strychnine."

This doctor also testified that 4 1/2 per cent. of albumen in the urine was generally indicative of a very bad condition of the kidneys, and would probably indicate uraemic poisoning.

Several witnesses detailed the symptoms exhibited by Mrs. Berrie from the time she was taken sick until she died. Upon these symptoms the state predicated its hypothetical question to its experts, and from which doctors testified as above set out.

This is the essence of all the evidence of the state tending to prove that Mrs. Berrie died of strychnine poisoning.

To rebut this evidence, the defendant called Dr. W. W. Osgood, who testified he treated Mrs. Berrie about 8 o'clock on the evening of March 20th; that he took a sample of her urine and had it tested at a laboratory in Muskogee; that this test showed 4 1/2 per cent. albumen and indicated inflammation of the kidneys; that he prescribed passi-kola; that passi-kola contains strychnine; that he directed this medicine to be given to Mrs. Berrie every two hours; that the patient had several convulsions which, taken with the urine analysis, indicated uraemic poisoning; that he saw her four or five times; that she responded to his treatment, and he thought she would recover; that he issued a death certificate showing the cause of her death to be nephritis and endocarditis.

On cross-examination, Dr. Osgood stated that on more study of the case he arrived at the conclusion the cause of her death was uraemic poisoning.

Defendant also called Robert M. Isham, a chemist, who testified the minimum lethal dose of strychnine is one-half grain; that under the fading purple test for strychnine the amount required is 1/27027 of a grain; that 13,513 positive tests could be obtained for the fading purple test with the amount of strychnine necessary to cause death; that in applying the taste test the amount necessary to give the test is 1/13513 per cent.; that the test could be applied 67,000 times for one-half grain of strychnine; that one ounce of passi-kola, the medicine claimed to have been given Mrs. Berrie, contained 14/100 milligram of strychnine; that you could obtain the fading purple test 56 times from one ounce; that you could apply the taste test to the amount of strychnine contained in one ounce of passi-kola 28 times; that a chemist looks for two outstanding things: First, whether strychnine is present; second, the quantity, and that this examination would be fruitless unless you could obtain a quantity test; that the Taylor Laboratory reports indicated no quantity test was made for strychnine; that the Terrell laboratory test of Mrs. Berrie's urine showed she had nephritis; that the condition shown by the urine analysis would produce convulsions.

In rebuttal the case offered no other evidence to sustain the charge that Mrs. Berrie died of strychnine poisoning.

To sustain the charge that defendant administered the strychnine to deceased, the state offered evidence that he was infatuated with Ida Bess Bright, who was secretary of the church and very often in his home; that at one time his wife asked him not to have the girl about the church because of what the neighbors might say; that defendant wrote her a number of gushing poems, expressing his sentiment for her and that he could not be happy without her and they would be together before long; that defendant told certain officers he loved the Bright woman better than his life; that he met her frequently at restaurants and other places, and they also visited a rooming house and had sexual intercourse; that on the day of the funeral defendant handed an envelope with some papers in it to the Bright woman, which the witness thought contained insurance papers, but later the couty attorney admitted there was no insurance in the case; that the Bright woman was at the home during the sickness and death of Mrs. Berrie, accompanied defendant and the family to the funeral, and was frequently with him after the funeral; that he married the Bright woman 59 days after the death of his wife; that a few days after their marriage defendant and his wife were seen in the back yard burning trash; that she picked up what looked like a small box or bottle, and that he took it out of her hand and tossed it into the trash burner; that after his arrest he at first denied any illicit relations with the Bright woman, but later admitted the relations between himself and her as above set forth; that no tombstone had been erected over the body of Mrs. Berrie; that defendant purchased a new automobile shortly after his wife's death; that at the trial the Bright woman was wearing a ring taken from Mrs. Berrie's finger while she was sick; that defendant took the witness stand in habeas corpus proceedings for bail, but made no mention of any threat of suicide or any belief that his wife might have committed suicide; that later defendant again applied for a writ of habeas corpus, and at that time produced a suicide note which he claimed to have found in his wife's Bible. The state showed by J. C. Sherman, a handwriting expert, and other witnesses that this note was not in the handwriting of Mrs. Berrie, but made no effort to show that defendant was the author of the note.

The state offered no evidence that defendant ever purchased or possessed any strychnine, or that any strychnine was found about the house or any container or evidence of strychnine being about the house, nor that he had anything to do with the possession or taking of the capsule which Mrs. Berrie took after dinner and before she was stricken at church.

To rebut this evidence that defendant had administered the poison, he produced Iliff Berrie, a son, Ruth Berrie, the son's wife, and others, who testified the suicide note was in the handwriting of Mrs. Berrie. Inmates of the jail testified that, shortly after the Bible was taken to defendant's cell in the county jail, certain papers fell out of the book on to the floor, and that later defendant produced this note as being among those papers.

Ruth Berrie, the daughter-in-law, testified she removed the rings from her mother's hands so she could rub them and restore circulation, and dropped the rings in defendant's pocket; that the ring worn by the Bright woman at the trial was a gold band ring which her mother did not wear because it was too small for her; that deceased complained of headache and kidney trouble; that she would purchase aspirin compound capsules and keep them in her handbag purse; that she had her purse with her at Sunday school that morning, took a capsule after drinking a cup of coffee at noon, and took the purse with her to the meeting at the First Christian Church; that the passi-kola left by Dr. Osgood was given to deceased according to directions; that charges had been preferred against defendant before the presbytery that he preached a doctrine contrary to the church, and a hearing set on these charges at Wagoner, before the presbytery; that deceased had been greatly worried over these charges, and said that she could not bear them — that it would kill her; that deceased was highly nervous and despondent; that she was going through the change of life, and had been having headaches and kidney trouble for a considerable time; that during her last illness she heard her say to defendant:

"Sweetheart, you are so good to me," and he said, "Am I not always," or something like that, and she said, "Yes, especially when I am sick"; that defendant seemed to be terribly worried and hurt over deceased's sickness; that later deceased said "They persecuted my husband and he is innocent and it is killing me, and I am ready to go if you promise you will help take care of little Dot"; that Dr. Rafter made no examination; that he seemed to be drinking, and she could smell liquor on his breath; that he made no diagnosis or statement as to what was the matter with deceased.

Iliff Berrie testified to the most cordial and affectionate relations between his father and mother, and corroborated his wife as to who removed the rings from their mother's hands and what was done with them.

The minister who conducted deceased's funeral testified the papers handed by defendant to the Bright woman were the obituary and funeral notices for the newspapers.

Neither defendant nor the Bright woman took the witness stand.

When the state had rested its case, defendant demurred to the evidence and requested the court for an instructed verdict of not guilty, which request was denied.

In his motion for a new trial in the lower court and his petition in error in this court, defendant renews his complaint that the verdict of the jury and the judgment of the trial court thereon are contrary both to the law and the evidence.

The question for this court to determine from the evidence in this case is: Did the state, as it was required to do under the allegations of the information, prove beyond a reasonable doubt that Mrs. Berrie died of strychnine poisoning?

The evidence of the state as to the cause of Mrs. Berrie's death is so contradictory and unsatisfactory that it cannot reasonably be said she died of strychnine poisoning. In fact, the evidence of all the doctors who waited on her during her illness is either guesses or entirely contradictory.

On the second proposition, there is no competent evidence tending in any wise to show either that defendant administered the strychnine to deceased or procured it to be done.

The state proved defendant guilty of reprehensible conduct in his relations with Ida Bess Bright, and thus established a motive for the crime. While proof of illicit intercourse with another woman, failure to erect a tombstone over the grave of his dead wife, the purchase of a new automobile shortly after her death, and marriage to the woman in the case 59 days after his wife's death are suspicious circumstances, they are not proof beyond a reasonable doubt that he killed his wife by the administration of strychnine.

This court in numerous cases has said:

"The facts and circumstances proved must not only be consistent with and point to the guilt of the defendant, but they must be inconsistent with his innocence." Sies v. State,6 Okla. Cr. 142, 117 P. 504; Nash v. State, 8 Okla. Cr. 1,126 P. 260; Davis v. State, 18 Okla. Cr. 112, 193 P. 745; De Bose v. State, 18 Okla. Cr. 549, 197 P. 176; Key v. State,22 Okla. Cr. 284, 210 P. 1044; Hamilton v. State,25 Okla. Cr. 233, 219 P. 951; Tomlinson v. State, 27 Okla. Cr. 429,228 P. 608; England v. State, 29 Okla. Cr. 38, 231 P. 1087.

"Where the evidence is wholly circumstantial, and the facts and circumstances in evidence are of such a character as to fairly permit an inference consistent with innocence, it cannot be regarded as evidence sufficient to support a conviction." Brown v. State, 12 Okla. Cr. 343, 156 P. 1150; Robbins v. State, 12 Okla. Cr. 412, 157 P. 1027.

"Where the state relies wholly on circumstantial evidence to prove guilty knowledge, the circumstances relied upon, when considered together, must point clearly and conclusively to the guilt of defendant and exclude every reasonable hypothesis other than that of guilt." Davis v. State, 18 Okla. Cr. 112,193 P. 745; Adams v. State, 38 Okla. Cr. 173, 259 P. 665.

As was said in Davis v. State, supra:

"The appellate court cannot safely permit a judgment of conviction to stand unreversed, where one material element of the offense rests alone upon evidence which amounts merely to suppositions or suspicions of guilt."

In Freeman v. State, 52 Okla. Cr. 209, 4 P.2d 120, this court said:

"As a general rule, verdicts which have received the approval of the trial judge will not be disturbed when supported by evidence sufficient to make out the offense. However, when the evidence is all carefully considered and it appears that it is wholly wanting in respect to some essential element of the offense charged, the judgment will be reversed as insufficient to sustain the conviction."

In Richards v. State, 52 Okla. Cr. 436, 6 P.2d 449, this court said:

"Where the evidence tending to connect defendant with the crime charged is wanting in some necessary element and at best shows only a probability of guilt, this court will reverse the judgment."

In State v. Blydenburg, 135 Iowa 264, 112 N.W. 634, 14 Ann. Cas. 443, that court said:

"Where one is charged with murder by the administration of a designated poison, the possession by accused of such poison at the time of the alleged offense is a necessary condition to support a conviction."

In the body of the opinion the court said:

"As appellant was charged with the commission of murder by the administration of arsenic, the possession by him of arsenic at the time of the alleged offense was a necessary condition of his guilt. It was very important, therefore, for the state to trace, if possible, that particular poison to his hands. The only proof offered for which such effect is claimed was, * * * that appellant had on one or more occasions bought 'Rough on Rats'; last occasion being two months prior to the alleged murder. No part of this article so sold was produced or identified on the trial." But experts testified that Rough on Rats contained probably 50 per cent. of arsenic.

While this court has never gone that far, it has uniformly followed the rule in the cases heretofore cited where in effect it has held that to warrant a conviction on circumstantial evidence, each fact in the chain of circumstances necessary to prove guilt must be proven by competent evidence beyond a reasonable doubt, and all the facts necessary to prove guilt must be connected with each other and with the main fact, and all the circumstances, taken together, must be of a conclusive nature, producing a moral certainty that the crime charged was committed and that the accused committed it.

Measured by this standard, the evidence in this case is wholly insufficient to prove that defendant either administered the poison or procured it to be done.

Defendant also complains that the county attorney was guilty of prejudicial misconduct in his opening statement to the jury.

Examination of the record discloses that counsel attempted in his opening statement to justify the filing of murder charges against defendant. A few quotations will be sufficient to show the nature of these statements. To begin with he said: "One reason why I felt so much interest in this case is the fact that I know way back yonder at Sentinel, Oklahoma, there is an old woman 84 years of age that felt in her heart that this defendant was guilty of the crime of murder."

The court sustained defendant's objection to this statement, but this court in Green v. State, 39 Okla. Cr. 430,266 P. 512, held that an argument calculated to sway the jury, and which is appealing to prejudice and passion and not based on the evidence, where properly excepted to, constitutes reversible error.

It also appears from the record that the county attorney sought to justify the prosecution by calling as witnesses at the opening of the trial the sisters and brother of defendant's deceased wife. None of these witnesses could testify to any fact material or competent in the case, and were called only for the purpose of testifying that their suspicions were aroused and they had demanded an investigation. The court permitted this kind of evidence to be introduced, over defendant's objection. It was not only unnecessary but highly improper for the county attorney to seek to justify the filing of the charge against defendant. It was absolutely immaterial and highly improper that an 84 year old woman believed in her heart that defendant was guilty of the murder of her daughter, and it was also highly improper and prejudicial that his deceased wife's sisters and brother had suspicions in connection with the case and had requested the county attorney to investigate it.

Defendant also complains that the county attorney was guilty of prejudicial misconduct in his argument to the jury. The county attorney said:

"Could this relationship continue, the relationship that was going on between them? Could that continue? Let me say that there is not a denial of it by a single witness in this case, and yonder sits his present wife who could have taken the witness stand and told us that it didn't exist if it didn't, but she didn't do it."

He also said:

"I see that in the original conversation with John Wolsey and John Wolsey's testimony in this case, that John Wolsey testified in detail as to the original statement of Dr. Berrie at the jail; that that testimony of John Wolsey does not show that the doctor there at the jail house in those original conversations ever denied to John Wolsey at the time the original conversations were had, that he, the doctor, poisoned his wife."

Defendant's counsel objected to this statement, which was by the court overruled.

This line of argument was entirely improper. It was not incumbent upon defendant to deny at any time any statement made by him to any officer or other person in connection with the crime with which he was charged. The burden of proof was on the state to show that Mrs. Berrie died from strychnine poisoning and that defendant administered it. This line of argument could have been intended for no other purpose than to prejudice the minds of the jury against the defendant upon a matter not properly in issue.

Defendant next contends it was prejudicial error for the county attorney to ask the following questions:

When one of the state's witnesses testified to seeing the defendant and his wife in the back yard burning trash and to seeing the wife pick up a small brown box or bottle and defendant take it out of her hand, he asked the witness: "When he grabbed that out of her hand?" thereby implying something which the witness had not said.

He asked the state's witness, Ruth Berrie, this question:

"Q. I will ask you to state if at the time Mr. Wolsey and I talked to you at your home, before Dr. Berrie was arrested, if you did not state then that it was your opinion that Dr. Berrie poisoned Mrs. Berrie?"

Later in the trial, the county attorney asked her this question:

"Q. I will ask you to state whether or not before the grand jury, on the 8th day of August, you made this statement, or this in substance, 'In my opinion, Dr. Berrie poisoned his wife?' "

An objection was made to the question, and the county attorney said:

"We are simply laying the ground for impeachment of the witness, Your Honor, that is all I am seeking to do. The Court: Proceed."

Thereupon the county attorney asked the following question:

"Q. Mrs. Berrie, I will ask you if that is not true, that on the 8th day of August, before the Muskogee county grand jury, in the presence of the twelve grand jurors and Mr. Babb and myself, didn't you say this, or this in substance, that Dr. Berrie poisoned his wife?"

This was objected to by defendant's counsel, and the court said: "I believe I will let her answer that."

These questions were also asked Iliff Berrie, defendant's son, who was permitted to answer over defendant's objections.

It nowhere appears in the record that the county attorney made any effort by any witness to show that this daughter-in-law of defendant had ever made any such statement, although the county attorney, Mr. Babb, and members of the grand jury could have been called for that purpose.

These questions were highly improper and prejudicial, and could have been asked for no other purpose than to destroy the effect of the testimony of the witnesses and prejudice the jury against them.

This court has held in a number of cases that the mere asking of incompetent questions by the county attorney, even where the court sustained an objection thereto, where such questions tended to degrade and belittle the defendant, is ground for reversal. Watson v. State, 7 Okla. Cr. 590,124 P. 1101; Freeman v. State, 20 Okla. Cr. 443, 203 P. 1052.

Complaint is also made that the county attorney was guilty of misconduct in asking Dr. Isham, a defense witness, this question:

"Q. And the estimate you gave would depend upon whether you were called as a witness for the state or the defense, wouldn't it, doctor?"

Dr. Isham had testified that Mrs. Berrie died of uraemic poisoning. He further testified that from one ounce of the passi-kola taken by Mrs. Berrie there was enough strychnine to have produced the positive reaction in the qualitative test made by the state's chemist, known as the blue-purple test. This question was asked by the county attorney to discredit the witness, without any cause whatever, and to prejudice him and defendant's cause before the jury.

Under section 2699, C. O. S. 1921, defendant's wife could not be used as a witness against him. If she could not be used as a witness against him, the fact of her absence from the witness stand could not be used as a circumstance against him, for that would still be using defendant's wife as a witness against him. Nor could the officer properly testify to anything defendant's wife said that tended to connect defendant with the crime.

In Stutsman v. Territory, 7 Okla. 490, 54 P. 707, 710, the Territorial Supreme Court said:

"The statute does not contemplate, nor will it permit, that a husband or wife shall, directly or indirectly, be coerced by others upon the witness stand to testify one against the other. * * * If the failure of the husband to call his wife as a witness in his behalf is to be construed as evidence against him, or even as a circumstance against him, his privilege and option which the statute expressly accords to him, would be absolutely annulled, and he would be compelled in all cases to produce her, or run the hazard of being convicted on an implied confession or admission, or to make explanations for not offering her as a witness, which may result in breaking down or impairing the great principles which protect and involve the sacred privacy of domestic life."

Under this authority and others which might be cited, it was not necessary for defendant's wife to take the witness stand and deny statements which Wolsey testified she made, as the same was entirely prejudicial and wholly inadmissible.

The effect of these statements and argument was to get before the jury the idea that, since neither defendant nor his wife had taken the witness stand to deny statements Wolsey claimed were made to him by them, therefore they amounted to admissions of the facts. This also amounted to a comment upon the fact that defendant had not testified.

This court has repeatedly reversed cases where the misconduct and prejudicial statements of the county attorney were not so grave, uncalled for, and prejudicial as in the case at bar.

The county attorney is an able lawyer and a vigorous prosecutor, and, evidently believing the defendant to be guilty, he left nothing undone or said that could in any wise influence the jury in finding defendant guilty.

Assignments of error 7 to 13, inclusive, are all directed to the alleged misconduct of the trial judge, which prevented defendant from obtaining a fair trial.

The first instance has to do with the threat of the trial judge to send the defendant's counsel to jail. It appears from the record that defendant's counsel was examining one of his witnesses; objection was made by the county attorney to certain questions, which objections were sustained by the court. Thereupon defendant's counsel dictated into the record what he expected to prove by the witness, to which the court said:

"Now, Mr. Hartsell, you asked a question and I sustained it and you come up here and dictate into the record an entirely different state of facts than what the question called for, and I ask you not to do that any more. Mr. Hartsell: We except to the remarks of the court. The Court: What you dictated into the record is not anything like your question just asked. Mr. Hartsell: That is what I am trying to do if I had half a chance. The Court: Mr. Hartsell, if you say anything like that again I will send you to jail. Mr. Hartsell: We except. The Court: I don't know what your purpose is in assuming that attitude, but it seems like you have some purpose. Mr. Hartsell: We except to the remarks of the court."

And a little further on, and during the examination of the same witness, the court said:

"I have known you, Mr. Hartsell, for 25 years, and you are as good a friend as I have, but if you don't conform to the rules of this court I am going to have you trade chairs with Mr. Watkins and have him conduct the case. Mr. Hartsell: We except to the remarks of the court. The Court: I know one thing, and I think any man or woman in the world that ever saw me on the bench would say that I try to do the right thing and try to be fair, and you haven't been fair with the court since the beginning of this trial. Mr. Hartsell: We except to the remarks of the court."

All of these threats to jail defendant's counsel and to take him out of the case were made in the presence and hearing of the jury.

This court has reversed several cases because the trial court threatened, in the presence of the jury, to jail defendant's counsel. McSpadden v. State, 8 Okla. Cr. 489, 129 P. 72; Kelley v. State, 31 Okla. Cr. 51, 236 P. 915; Boyer v. State,16 Okla. Cr. 388, 183 P. 620.

To properly present the questions involved in this case has required an unusually long dissenting opinion, but the writer has felt that it was justified because of the gravity of the case.

Under the majority opinion, the defendant must spend the remainder of his life in the penitentiary, unless he receives relief from the executive department of the state, notwithstanding the evidence is wholly insufficient to support the verdict of the jury and the case should have been reversed and dismissed for that reason; and, being convinced from an examination of the record that the jury undoubtedly returned their verdict of guilty because of the prejudicial misconduct of the county attorney and the trial judge, I have been compelled to disagree with my colleagues on the court and dissent from the majority opinion.