State v. David

Decision Date03 December 1895
Citation33 S.W. 28,131 Mo. 380
PartiesSTATE v. DAVID.
CourtMissouri Supreme Court

Appeal from circuit court, Osage county; Rudolph Hirzel, Judge.

Emile David was convicted of murder in the first degree, and appeals. Affirmed.

The jury were instructed as to the meaning of "reasonable doubt" and "deliberation" as follows: "And if, upon a view of the whole case, you have a reasonable doubt of the guilt of the defendant, you will acquit him; but such a reasonable doubt as mentioned in these instructions, and which will authorize an acquittal on that ground, must be a substantial doubt of defendant's guilt, founded and based upon the evidence and all the facts and circumstances proven in the case, and not a mere possibility of innocence. If, however, the whole evidence in the case leaves your minds in such condition that you are neither morally certain of the defendant's guilt nor morally certain of his innocence, then a reasonable doubt exists, and in such case you should give the defendant the benefit of such doubt, and acquit him." "Deliberation" means "done in a cool state of the blood, and not done in a sudden passion, engendered by a lawful or just cause of provocation." To the giving of which instructions defendant duly excepted.

The defendant was indicted and convicted in the circuit court of Osage county, at the December term, 1894, of the murder of Frank Henderson by administering to him strychnine in a drink of whisky on the morning of January 8, 1894. From that conviction he prosecuted this appeal. The testimony discloses the facts that the deceased and his parents, during January, 1894, lived in Osage county, about 10 miles from Chamois; that the defendant, with his parents, resided in Osage county, between the home of the deceased and Chamois; that on the morning of the 8th of January the deceased started afoot to go to Chamois; that he arrived at the home of the defendant about daylight, where he stopped. Upon his arrival he remarked that he was cold, whereupon defendant invited him to take a drink of whisky, which he did, and almost immediately thereafter was taken with violent cramps, and died within an hour and a half. After drinking the whisky, the deceased had every symptom of being poisoned. The coroner was sent for, came, attended by two physicians, and made a post mortem examination, inspected his internal organs, removed the stomach, placed it in a sealed jar, and delivered it to Prof. Chas. S. Sanger, a professor of chemistry in St. Louis. Dr. Mahon, who assisted the coroner in the post mortem examination, testified that the deceased died from the effects of poison strychnine taken or administered to him. The testimony of Dr. Townley was in substance the same as that of Dr. Mahon. Prof. Sanger testified that he made a chemical examination of the stomach, and found that it contained five-sixths of a grain of strychnine, and that this amount was sufficient in quantity to destroy human life. It is further shown that when the deceased was taken with the cramps he was sitting by the stove in the kitchen, talking to Miss Lily David, a sister of defendant, with whom he was in love; that he was removed upstairs, and in the presence of the defendant stated that the defendant had given him a drink of white whisky, which tasted bitter, and left a taste something like quinine in his mouth, which he could not get rid of. One of the state's witnesses, Emmett Crow, testified that some time prior to the death of Henderson he had seen a bottle of strychnine in defendant's trunk. Mr. A. Brandenberger testified: That in November prior to the death of Henderson he had sold a quantity of strychnine to some one representing himself to be E. Davis. That he kept a poison record, upon which he entered the sale of all poison. His poison record showed the following: "November 1, at 11 a. m., strychnine, one drachm; to kill rats. Going to use it myself. E. Davis. Residence, Osage county. '93." That he could not identify defendant. That the signature in his poison register was made by the person who bought the poison. At the coroner's inquest the defendant was sworn and testified, and his evidence was written down by Mr. Giddinhagen, the sheriff of the county. After it was written out, it was read over by Giddinhagen to the coroner, who could neither read nor write. The coroner, as required by law, returned all the evidence taken down, together with the verdict of the jury, to the county clerk, who identified the papers at the trial. After their identification by the county clerk, they were offered in evidence, without objection on the part of defendant. The testimony of each witness as taken at the inquest purported to be signed by himself. The name of defendant was appended to his evidence thus returned. No objection was made because the signatures had not been first proven, or for any other reason whatever. J. Rhey McCord, Esq., was sworn as an expert, and testified that in his opinion the signature to the defendant's evidence before the coroner was written by the same person who signed the poison record kept by the pharmacist, Mr. Brandenberger. The testimony on the part of the defendant tended to establish a good reputation for the defendant, and a bad reputation for the state's witness Emmett Crow. It is also shown by the defendant that he was in Jefferson City on the 1st of November, the same date on which the strychnine was sold by Mr. Brandenberger. The David family testify that the deceased stated that he had taken a drink of whisky given by defendant out of a white, druggy bottle; and Mrs. O'Doud testified that just before the death of Henderson, and while he was sick, she took a drink of whisky out of a white bottle, which was said to be of the same whisky given to deceased. It is also shown that the deceased was in love with Lily David. She testified that, while her father objected to the attentions of the deceased, the defendant did not. She also testified that she had frequently been in the trunk of the defendant, had seen tools, bottles of musk and perfumery; but she does not say that she did not see strychnine, as testified to by Crow. The defendant testified in his own behalf. Denied that he purchased the poison as shown by Brandenberger's register. Does not remember the dates of his visits to Jefferson City. Admits having given the deceased a drink of whisky, but says there was nothing in the bottle but whisky. Says that he and his father and Mrs. O'Doud took a drink out of the same bottle after deceased became sick. Denies that he had any strychnine in his trunk, and testifies that he and the deceased were good friends. It also appears from the testimony...

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