Bowie v. State

• Decision Date: 16 May 1932
• Docket Number: (Criminal 3790)
• Parties: BOWIE v. STATE
• Court: Arkansas Supreme Court

49 S.W.2d 1049

185 Ark. 834

BOWIE v. STATE

(Criminal No. 3790)

Supreme Court of Arkansas

May 16, 1932

Appeal from Pulaski Circuit Court, First Division; Abner McGehee Judge; reversed.

Judgment reversed and cause remanded.

Wills Wills & McLees, for appellant.

Hal L. Norwood, Attorney General, and Robert F Smith, Assistant, for appellee.

OPINION

BUTLER, J.

The appellant, C. E. Bowie, was charged with the crime of murdering his wife by poison, and on a trial was found guilty of murder in the first degree, and his punishment fixed at life imprisonment in the State penitentiary. From that judgment he has prosecuted this appeal.

The excellent brief filed by counsel for appellant has been of material aid to the court, and from the authorities therein cited, with others discovered by our own research, and after a careful examination of the record, it is our conclusion that the judgment of the trial court must be set aside, and the cause remanded for a new trial.

For that reason it becomes necessary to notice each one of the errors assigned, which we will proceed to do in the order in which they are set out in the brief for the appellant.

1. It is first contended that the court erred in overruling the petition praying for a dismissal of the grand jury, and also the motion to quash the indictment afterward returned by it. The grand jury was selected prior to the date of the alleged crime, and convened for an investigation of such crime at a time when the defendant was confined in the jail. The grounds of the objection to the panel were (a) that one of the jury commissioners was not qualified as such under the provisions of § 6344 of Crawford & Moses' Digest. That statute provides that the jury commissioners shall possess "the qualifications prescribed for petit jurymen," and it is insisted that the particular commissioner did not have these qualifications because of act 135 of the Acts of the General Assembly of 1931, he having served as a member of the regular panel of the petit jury at the March, 1930, term of the court and as a member of the regular grand jury at the March, 1931, term.

Act No. 135, supra, provides that "no citizen in this State shall be eligible to serve on either grand or petit jury oftener than one regular term of the circuit court every two years." It is not suggested that the commissioner was disqualified otherwise than by the provisions of the act above quoted. That act did not disqualify him from jury service, and he still had all of the qualifications of a petit jury within the meaning of § 6344, supra, but was rendered ineligible for service for a season. Therefore he was eligible to serve as jury commissioner, and the panel could not be challenged because he was one of the number who had selected it.

(b) Another reason assigned for the quashing of the panel was that, in selecting the jury, the commissioners disregarded § 6350 of Crawford & Moses' Digest, which provides that the jury commission shall select "grand and alternate grand jurors from all parts of the county," in that none of the grand jury selected were from the city of North Little Rock or other parts of the county except the city of Little Rock, from which city all the grand jurors came. We think this provision merely directory. The grand jury is an inquisitorial body for the county, and is charged with the duty of investigating all infractions of criminal laws occurring therein. Doubtless the provision above quoted was for the reason that a grand jury drawn from all parts of the county would have within itself a fair degree of information regarding conditions existing, and, be in a better position to determine the character of the witnesses brought before it, and the reliability of the information which it might receive.

2. It is next insisted that the court erred in overruling the demurrer filed to the indictment. Without setting out the indictment in full, it is sufficient to say that we are of the opinion that it set out the offense charged with sufficient certainty and particularity. It charged that the murder was committed by poisoning the deceased. The indictment need not allege the nature of the poisoning, the way in which it affected the victim, or the character of poison used, and the demurrer was properly overruled.

3. Mrs. Bowie died suddenly on the night of October 23, 1931. Her body was embalmed by a local undertaker and buried in a cemetery without the city. After the burial the two daughters of the deceased went to the house of the deceased's sister and there remained. Their aunt questioned them about the circumstances of their mother's death and made such representations to the officers as to induce them to arrest the defendant, and to cause the body to be disinterred and an autopsy performed.

The testimony of the chemist who made an analysis of the contents of the viscera and that of physicians who attended the deceased at her death and who viewed the body thereafter tended to show that death was brought about by arsenical poisoning. The chemist testified that a slight trace of strychnine was also disclosed by his analysis. The testimony of the two daughters, the oldest of whom was about 17 years of age, and the other about 15, was to the effect that the defendant, their father, had frequently cursed and threatened their mother and at one time, when he was whipping the older of the two with a sash cord, he struck the deceased with it; that on several occasions he had been drunk and threatened to kill his wife "if she came to bed."

The defendant's sister-in-law testified as to the conduct of the defendant with a woman other than his wife, indicating an illicit relationship existing between the two and that she took the defendant to task about his conduct and told the wife about what she claimed to have discovered.

It was in testimony that a number of poisonous substances were in the house where the defendant and his wife resided, both at the time and before the wife died, and some paris green, nux vomica, strychnine and bichloride of mercury tablets were found on the premises. The paris green was kept in an outbuilding and the strychnine in a trunk.

The older of the two daughters, Veenie Bowie, related that her father came home on the evening of her mother's death between six and seven o'clock. He was mad and threatened to whip her (the witness) because supper had not been prepared; that, after they had partaken of the evening meal, and while her father and mother were in the act of retiring, her mother jumped and screamed and ran out into the yard choking and exclaiming she was dying. Witness was directed by her father to procure a doctor, and, with her sister, left for that purpose. When they returned she found her mother on the bed and her father fanning her. The other daughter stated that both her parents had gone to bed when her mother became sick and jumped up and ran out into the yard and her father choked her mother and bent her backward on the automobile. In this statement she was not corroborated by the older sister. That she and her sister left to get a doctor; that she had heard her father and mother discussing cattle stealing and arson, and had heard her mother object and ask her father not to do it. Neither of the daughters, nor any other member of the family saw the defendant give his wife anything to eat or drink. The younger daughter testified that when her father came home he threatened to kill her mother if she didn't have supper cooked the next time he came. The older daughter stated that, after the mother's death, she prepared some chicken and dumplings for her father; that he was ordinarily very fond of this, but that he didn't take any at that time, and that when some of these were taken to the woods as a lunch, they were brought back uneaten, and the younger girl said they turned green.

Some remarks were said to have been made by the defendant in the presence of his daughters. One remark, made two or three days after the death of the mother, was: "She knows and God knows I didn't poison her." Another remark said to have been made by defendant was that he wished he could call back 30 minutes.

The other circumstances relied on were found in the testimony of the two daughters, the two sisters, and the brother-in-law of the deceased, and one or two other witnesses, to the effect that the defendant expressed a desire that his wife's body be not cut upon, and that he had her buried in a cemetery at Jacksonville where they had no relative interred, although the brother-in- law had offered the defendant a lot in another cemetery in which to bury the deceased. Also that, in the opinion of one of the deceased's sisters, the defendant did not appear to grieve much over the death of his wife, and this was one of the things which aroused her suspicion. According to the testimony of the older daughter, her father got up early one morning and built a fire and threw a snuff box in the stove; that he didn't ordinarily build a fire, and that she got the snuff box and took it to her aunt, who gave it, with other things, to the officers.

The above relates substantially all of the circumstances testified to on which the jury arrived at their verdict.

On the part of the defense, it was shown by near neighbors who had visited in the home of the defendant and his wife, and who lived very nearby, that they never heard or observed any threats or abusive conduct on the part of the husband to the wife other than the usual marital jars that would, as they said, naturally occur, and that when Mrs. Bowie died the defendant seemed to be much affected and to sincerely mourn her death.

Two physicians testified (one who had had occasion to observe 25 or 30 cases of arsenical poisoning) to...