Burnett v. People

• Decision Date: 26 October 1903
• Citation: 68 N.E. 505,204 Ill. 208
• Parties: BURNETT v. PEOPLE.
• Court: Illinois Supreme Court

204 Ill. 208

68 N.E. 505

BURNETT

v.PEOPLE.

Supreme Court of Illinois.

Oct. 26, 1903.

Error to Criminal Court, Cook County; Frank Baker, Judge.

Orville S. Burnett was convicted of murder, and he brings error. Reversed.O'Donnell & Brady and William Dillon, for plaintiff in error.

H. J. Hamlin, Atty. Gen., Charles S. Deneen, State's Atty., and J. R. Newcomer and F. L. Barnett, Asst. State's Attys., for the People.

Plaintiff in error sues out this writ of error to the criminal court of Cook county to review a judgment and sentence pronounced against him in that court for the murder of Charlotte S. Nichol.

The indictment contained two counts. The first count charges the plaintiff in error with having produced the death of the deceased by administering poison to her. The second count charges the plaintiff in error with murder, charging, first, an unlawful and felonious assault upon the said Charlotte S. Nichol, and then charging that with malice aforethought, and feloniously and willfully devising and intending the said Charlotte S. Nichol to then and there poison, kill, and murder herself, did then and there counsel, hire, persuade, and procure the said Charlotte S. Nichol to then and there take into her mouth a large quantity of morphine, a deadly poison, with intent that she should take and swallow the same for the purpose of then and there poisoning, killing, and murdering herself, and that in consideration of such counseling, hiring, persuading, and procuring the said Charlotte S. Nichol did take and swallow the said morphine, from which she died. The count concludes that the plaintiff in error ‘the said Charlotte S. Nichol, in manner and form aforesaid, then and there unlawfully, willfully, feloniously, and of his malice aforethought did kill and murder, contrary to the statute and against the peace and dignity of the said people of the state of Illinois.’

The jury returned a verdict of murder, and fixed defendant's punishment at 15 years in the penitentiary, upon which judgment and sentence were had. The defendant has sued out this writ of error, and assigns as error that the evidence did not establish the defendant's guilt; that the court erred in allowing the state to introduce evidence of the deceased's reputation for chastity; and erred in refusing to give the defendant's third, fourth, and fifth refused instructions, which dealt with the weight to be given to the confessions or admissions testified to as having been made by the defendant.

RICKS, J. (after stating the facts).

The evidence discloses that the plaintiff in error, Orville S. Burnett, whom we will refer to hereafter as ‘defendant,’ a married man, about 28 years of age, living with his wife, was a practicing dentist, with an office in the city of Chicago; that he had resided there some two or three years, and that his family relation was pleasant. The deceased, Charlotte S. Nichol, was a married woman, living with her husband and three children, residing about three blocks distant from defendant's residence and place of business. About the 3d of September, 1901, defendant became acquainted with the deceased, Mrs. Nichol, in a drug store under his office. At that time Mrs. Nichol was with a woman called Kirby Smith, from some place in Tennessee. The defendant and the two women casually met in this store, and, without anybody to introduce them, formed an acquaintance. Between that time and the 20th of October-the date of the death of Mrs. Nichol and of the alleged crime of the defendant-the defendant and Mrs. Nichol were very frequently together, sometimes accompanied by Kirby Smith, on which occasions they went to theaters, saloons, luncheons, and dinners, and at other times visiting the house of Mrs. Nichol, accompanied by a man named Adams, and one time, at least, upon the invitation of the husband of Mrs. Nichol, visited the home of the latter, and took dinner there. The evidence shows that on the night of Wednesday, the 17th of October, the defendant and Mrs. Nichol spent the night together at the Marlborough Hotel. The husband of Mrs. Nichol was holding some official position with a railroad company, and had formerly lived in Tennessee. Shortly prior to Mrs. Nichol's death her husband had been promoted to a higher position with the railroad company, which necessitated his return to Nashville to reside. This change of residence was very distasteful to Mrs. Nichol, as it appeared that her home life in Tennessee, where she had formerly resided with relatives of her husband, had been made unpleasant, and also for the further reason that during her brief acquaintance with defendant she had formed a violent attachment for him, and was very loath to leave him. When Mrs. Nichol was apprised that it was necessary for her to change her residence, it seems that the idea of suicide at once entered her mind, and on the Wednesday evening preceding her death-being the same day she learned of the proposed change-she sought the defendant, went to saloons with him, drank with him, spent the night at the Marlborough, as above stated, and during that night constantly talked about committing suicide, stating that she had sufficient chloral to accomplish that end. The defendant advised her against pursuing this course, pointing out to her the absurdity of doing so. The following Friday evening-the night of her death-defendant again met her about 6 o'clock, and from that time until 1 or 2 o'clock the following morning, in the company of each other, they were in a number of saloons, each drinking quite heavily, and each taking whisky. During the evening Mrs. Nichol was continually talking about committing suicide, stating that she would not go back to Nashville under any circumstances, and informed the defendant that she had determined to commit suicide, stating she had in her pocketbook two phials of morphine, and solicited the defendant a number of times to commit suicide with her, which he refused to do. About 2 o'clock on Saturday morning they arrived at the Marlborough Hotel, where they secured a room together for the night. When they arrived there, defendant, Burnett, was quite drunk, but Mrs. Nichol did not seem to be drunk, but in the possession of her senses. A short time after entering the room Burnett went across the street to a drug store and purchased a phial of morphine containing 25 quarter-grain tablets, which he brought to the room, opened, and set upon the dresser, and at which time he states there were two similar phials standing upon the same dresser. When he returned the deceased was undressed, being simply in a night robe, and lying on the bed, and seemingly very happy. She requested some paper and an envelope, which defendant rang for, and which were brought. The sheet of paper and envelope were delivered to Mrs. Nichol as she lay in bed, in the presence of the maid who brought them. Mrs. Nichol at once began writing upon the paper handed to her. When defendant opened the phial of morphine purchased by himself, it overturned, and a portion of its contents-about half-spilled on the floor. Defendant then undressed and retired, and went to sleep without taking any of the morphine. Some time the next day, when he awoke, he found that Mrs. Nichol was lying by his side dead, and found a note written by her upon the dresser, and over or against the empty morphine bottles, which was as follows:

‘To whom it may concern-I did it because I loved him better than anything on earth, and he loved me, and we could not be separated. Good-by. Charlotte.’

Upon discovering the death of Mrs. Nichol, defendant, horror stricken at the situation in which he found himself, and believing that his life was ruined, arose, took the morphine remaining in the bottle purchased by himself, attempted to cut his throat or puncture his neck with a hat pin, and turned on the gas and lay down. The proprietress of the house, detecting the gas, came to the door, and was admitted by defendant. A doctor and the police were called at once. Restoratives were given to defendant, and about three hours later he was taken to the police station, where a statement was taken from him.

The statements of the defendant, Burnett, are substantially the only evidence in the case in any manner connecting him with the death of Mrs. Nichol. These statements began when the doctor arrived, and were concluded (there being several of them) about 10 o'clock at night, in the police station. The portions of the statements or admissions chiefly relied on for conviction were to the effect that he had agreed with the deceased to commit suicide if she did. No witness heard any of the conversation between the parties. No witness saw anything done by either of them calculated to produce the death of the deceased, and outside of the statements of Dr. Burnett, the defendant, the only evidence was the fact of their being together in the place, the note found, and the three empty morphine phials, and the testimony of the druggist that a man somewhat resembling the defendant purchased a phial of morphine during that night.

The first person to see the defendant, outside of the chambermaid and the landlady, who had no conversation with him, and knew nothing about him outside of the fact that he was drunk when he came in the night before, and that the paper was called for and given to the deceased, was Dr. Carter, a witness for the people, who arrived there at 3:30 p. m., and testifies that when he first saw defendant he was in a sort of dazed or stupefied condition, with the pupil slightly contracted, but that at that time the witness could not tell whether the defendant was suffering from the effect of the excessive use of liquor or the effect of morphine. To the doctor, upon his inquiry, the defendant stated that he and the woman had taken a room together there, and that, sooner than go south with her family, she had taken the suicide route, and called the doctor's attention to the note which...