Berry v. State

• Decision Date: 23 January 1897
• Parties: BERRY v. STATE.
• Court: Arkansas Supreme Court

Page 1038

38 S.W. 1038

BERRY v. STATE.

Supreme Court of Arkansas.

January 23, 1897.

Appeal from circuit court, Lee county; H. N. Hutton, Judge.

Lee Berry was convicted of murder by poisoning, and appeals. Reversed.

The appellant, Lee Berry, was convicted of murder in the first degree, — committed by poisoning, — and appealed to this court. On the trial of the cause, Dr. E. V. Chandler, a witness for the state, testified: "On the night of the 26th of last October I was called, in my professional capacity, between 8 and 9 o'clock, to visit Ed Marsh [the person alleged to have been poisoned]. I reached his bedside about 9 o'clock, * * * and found him lying partly on the bed and partly on the floor. * * * When I got to him, his mind was perfectly clear, and I asked him what was the matter. He replied that he knew he was going to die, and that Lee Berry, the defendant, had given him a drink of whisky, about an hour before, which tasted nasty, and that he knew it contained poison, because it tasted nasty, and because he got sick shortly afterwards, and that Lee Berry `had given him his dose' in that drink of whisky." Here counsel objected to that part of the witness' testimony, as a part of the deceased's dying declaration, wherein he stated that the deceased said that defendant had given him his dose in that drink of whisky, and that he knew it contained poison. In each statement of the witness of the dying declaration of the deceased, he would include the same statement that deceased said that the defendant had poisoned him. The court asked the witness, before passing upon the objection, if that statement of the deceased — that he was poisoned by the defendant — was before or after the statement of the deceased that he knew that he was going to die. The witness answered that it was after such statement. The court then overruled the objection, an the defendant excepted. The same statement of the dying declaration of the deceased was repeated in the testimony of other witnesses, and objected to by defendant, as above set out; and, the objections being by the court overruled, the defendant each time excepted.

Jas. P. Brown, for appellant. E. B. Kinsworthy, Atty. Gen., for the State.

HUGHES, J. (after stating the facts).

It appears, from the declaration of the deceased while in extremis that the defendant had poisoned him, that it was made, not from a knowledge of the fact which he had, or could have had, and that it was an expression of his opinion,...