State v. Nesenhener

• Decision Date: 12 November 1901
• Citation: 65 S.W. 230,164 Mo. 461
• Parties: THE STATE v. NESENHENER, Appellant
• Court: Missouri Supreme Court

65 S.W. 230

164 Mo. 461

THE STATE v. NESENHENER, Appellant

Supreme Court of Missouri, Second Division

November 12, 1901

Appeal from Hannibal Court of Common Pleas. -- Hon. D. H. Eby Judge.

Reversed.

Geo. M Harrison for appellant.

Edward C. Crow, Attorney-General, for the State.

(1) In a case of this kind it is not necessary to prove how much of any particular poison it would take to destroy life, or that such quantity was found in the body of deceased. The evidence of medical men may be offered as to whether the death was caused by poison or not, and, although they may not be willing to declare that it was by poison, the fact may be satisfactorily established by various independent facts and circumstances, such as the prisoner's motive and opportunity, and whether he had or procured the poison, and every part of his conduct with relation to the matter. 3 Greenleaf's Evidence, 325; Kelley's Criminal Law 311. And it is sufficient if the jury is satisfied from all the circumstances beyond a reasonable doubt that the death was caused by poison administered by the prisoner. In the absence of an autopsy, the determination as to the cause of the death must be established by the group of symptoms which invariably accompany and characterize poisoning by morphine. In a poison case the cause of death must be ascertained; the possession of the poison by the accused and the opportunity to use the same, together with the motive, should be shown. In this case the testimony when examined by the court will satisfactorily show that the cause of the death was morphine poison. The group of symptoms that accompany morphine poison were all present. All the medical testimony shows that one symptom existed in the case of the deceased that never exists in uraemic poison and always is present in morphine poisoning to-wit, a soft pulse. The testimony showed that in uraemic poisoning the pulse is always hard, while in morphine poison, it is always soft. It is not disputed that the pulse of the deceased was soft. The contraction of the pupil of the eye was very great in this case and this always accompanies morphine poison, as shown by the medical testimony. It is true that other symptoms were present in the case of the deceased that might be present in a case of uraemic blood poison. The drug clerk who sold the morphine testified that on the thirteenth of July, 1900, he sold a bottle of similar character and size containing morphine to the defendant; that he was acquainted with the defendant and that she was a customer of the store. The testimony of the defendant herself shows that she was at the store on that morning and that she made purchases of other articles, but it is true she denies purchasing the morphine. Morphine was found in the vault in the rear of her residence, and a chemical analysis proved its poisonous character and that it was morphine. The bottle and the morphine are then accounted for up to the time that they are introduced in evidence. The defendant lived with the deceased and their little baby of something over a year old and with no one else. They were living together as man and wife. She did the cooking and waited upon him. The testimony showed that he had been ailing and that he had confidence in her and that he sent her for medicine and drugs and that he took what she gave him. She had every opportunity to administer poison. While it is true that it is hard to believe that a wife or a husband will administer poison to their helpmate, yet the history of the human race shows that this crime is frequently committed. It is true that no positive evidence exists that she administered to him this morphine that caused his death. The evidence is circumstantial. It is also true that it is frequently maintained that circumstantial evidence is inherently of a general and inferior nature from direct or positive testimony; but the fact still exists, nevertheless, that circumstantial evidence, although not invariably so, is most frequently superior in proving power to the average strength of direct evidence; and under the safeguards and qualifications of the law, it affords a secure ground for the most important judgments in cases where direct evidence is not to be obtained. It must be conceded that with the wisest laws and the most perfect administration of them, the innocent may sometimes be doomed to suffer the fate of the guilty; for it were vain to hope that from any human institution all error can be excluded. "But certainty has not always been attained even in those sciences which admit of demonstration; still less can unfailing assurance be invariably expected in investigations of moral and contingent truths. Nor can any argument against the validity and sufficiency of circumstantial evidence as a means of arriving at a moral certainty be drawn from the consideration that it has occasionally led to erroneous convictions, which does not equally apply to an objection against the validity and sufficiency of moral evidence of every kind; but it is believed that a far greater number of mistaken sentences have taken place in consequence of false and mistaken direct and positive testimony than through erroneous inferences drawn from circumstantial evidence." "Admitting," said Mr. Justice Story, "the truth of such cases, are we then to abandon all confidence in circumstantial evidence and in the testimony of witnesses? Are we to declare that no human testimony to circumstances or to facts is worthy of belief, or can furnish a just foundation of the administration of public justices? Human imperfection is such as to render it necessary to depend upon other evidence than such as is direct." Wills on Circumstantial Evidence, 478; 89 N.C. 462. (2) The general proposition is, under the decisions in this State, that a verdict will not be disturbed on appeal on the ground that it is not supported by the evidence, unless there is a total failure of the evidence or it is so weak that the necessary inference is that the verdict was the result of passion, prejudice or partiality. State v. Howell, 100 Mo. 628; State v. Glahn, 97 Mo. 679; State v. Cook, 58 Mo. 546; State v. Hilterbrand, 116 Mo. 543; State v. Minton, 116 Mo. 605; State v. Thomas, 78 Mo. 327; State v. Jackson, 95 Mo. 623. It is not sufficient to authorize the Supreme Court to interfere on the ground of failure of evidence to support the verdict, that a different verdict could well have been returned by the jury; when proper instructions are given and there is evidence that supports the verdict, it is beyond the province of the Supreme Court to interfere. State v. Thomas, 78 Mo. 327; 79 Mo. 258; 92 Mo. 265; 3 Waterman and Graham on New Trial, pp. 1339, 1340, 1363.

OPINION

BURGESS, J.

This is an appeal by defendant from a conviction and sentence of death passed upon her on a charge by indictment of having feloniously administered to her husband, Frank Nesenhener, a large...