Cassell v. Commonwealth
| Decision Date | 18 April 1933 |
| Parties | Cassell v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
1. Criminal Law. — Motive, though insufficient alone to prove guilt, is material.
2. Homicide. — Whether defendant administered poison or put it in deceased's way to take innocently does not affect criminality of act.
3. Homicide. — Murder conviction in prosecution for poisoning wife held not flagrantly against evidence.
4. Criminal Law. — In prosecution for poisoning wife, denying change of venue because of public sentiment and circulation of inflammatory false stories held not abuse of discretion under evidence (Constitution, sec. 11).
5. Criminal Law. — In murder prosecution, denying motion for continuance and objection to night session, although not entirely commendable, in view of indisposition of defendant and his counsel, held not error.
6. Criminal Law. — Juror's bias as shown by alleged statements hostile to defendant prior to murder trial held not so clearly proved as to warrant interference with judge's refusal to set aside verdict for bias (Criminal Code of Practice, secs. 209, 271).
Appeal from Lawrence Circuit Court.
WAUGH & HOWERTON and W.T. CAIN for appellant.
BAILEY P. WOOTTON, Attorney General, and FRANCIS M. BURKE, Assistant Attorney General, for appellee.
Affirming.
The appeal is from a judgment declaring the appellant, Zona Cassell, guilty of murdering his wife by poison and sentencing him to life imprisonment. The Bill of Rights vouchsafes to every person accused of crime the right to a fair trial — by an impartial jury of the vicinage if possible, but a fair trial in all events. The appellant claims that this inalienable right was not accorded him. He rests his appeal upon that constitutional provision (section 11), and insists upon his innocence.
In considering the grounds urged for a reversal, we shall not discuss the points in the sequence of their development on the trial, but first consider the claim that the verdict is flagrantly against the evidence, as that must present fully the facts of the case.
The family lived in the Georges Creek section of Lawrence county. The defendant was 55 years and his wife about 50 years old. They had been married 29 years, and had lived together peaceably and affectionately. A married son lived about 150 yards from their home. A younger son had died about 4 years before.
The evidence of guilt produced by the commonwealth is that the neighbors heard Cassell calling as in distress at his home about nine o'clock on the night of October 26, 1932, and when they went there they found Mrs. Cassell on the bed in convulsions. Their son Luther had come, and his father told him to go for a doctor, but before he could get away Mrs. Cassell died. According to the neighbors, during this brief period she was apparently unconscious and made no statement. It seems that her body was not embalmed, and the next morning there was what was thought to be a swelling of her stomach, but which was apparently the "arching" of the body due to the contraction of the muscles caused by strychnine poison. When it was suggested then that her stomach should be pumped out, the husband stated he did not want that done and would rather bury her that afternoon. About two weeks after her burial an analysis of the viscera revealed that she had died of strychnine poison. About a month before this the defendant had purchased some strychnine, but there was no effort at concealment, as he had properly signed the druggist's register showing its purchase. That night the accused appeared to be sorrowful. In relating what occurred he stated that after supper he and his wife had listened to the radio until bedtime, and that she had complained of feeling bad, and said she would go to the kitchen and eat a bite and see if she would not feel better. She returned to the room, and in response to an inquiry said that she felt no better, and then said she would get herself some medicine. He also said after she had gone to bed she had gotten up and fixed herself some medicine; but did not tell the witness what it was. But another person testified he said he had given her some soda water and that in a few minutes "she was gone." This he denied. Just before the trial the accused told a witness that his wife had told him and his son that she had taken the poison herself, and asked that they say nothing about it, but he had made a mistake in not doing so sooner. The proof is that during the afternoon before her death the woman had been in good health and happy spirits.
About a year before, May Borders, a niece of Mrs. Cassell, came to live in the home. She was about twenty years old. That she bore a bad moral reputation is not denied. She had been gone from there about a week or so when Mrs. Cassell died. A witness related that at Mrs. Cassell's instance he had talked with the appellant about having bought a dress for the Borders girl, and he then said that his wife was jealous of May; that he had bought a dress for her as the young ladies shunned her because she was not dressed like they were; that perhaps he should not have done so, but had thought no more about buying the girl a dress than he would one for his sister, and had paid only $6.50 for it.
May Borders testified that her aunt had said to her that there was a lot of talk about her uncle and herself, and asked that she go to her grandmother's home and stay awhile and see if the talk would not die down and then to return. She testified that there had been improper relations between the accused and herself, and that at that time she was pregnant by him. About ten days after the death of his wife, the accused and the girl went to Lexington, where they lived together for about two weeks, when they were arrested on the charge of murder. She stated that both before and after the death of his wife the defendant had asked her to marry him, and that while in prison he had written her a note asking if she would marry him when they got out.
The defendant denied the accusations. He testified that his wife's health had not been good for several years, and that after the death of their son she had worried a great deal, was despondent at times, and said she had rather be dead than alive. Upon several occasions she had asked him to get some strychnine to kill mice and rats with which they were bothered, but he had not done so until about a month before her death when she and their son were in town and she had him stop and get it. Some of it was given to his brother and his son, and his wife took possession of the remainder, which he never saw afterward. On the evening of her death she complained of pains in her stomach, which she attributed to some greens eaten at supper. She went to the kitchen for a few minutes, and upon returning got in bed, leaving the light burning. We quote directly from his evidence:
The defendant denied having said he had given his wife soda water. He had kept his story as to her poisoning herself a secret out of respect for his wife's wishes. The Borders girl, he testified, had been taken into their home at his wife's instance, and had been treated as a member of the family. His wife never said a word to him about their relations, except that upon one occasion, eight or nine months before, she thought he had paid too much for the dress he had bought her. He admitted he had been intimate with the girl, but says it was at her solicitation. He denied ever having asked her to marry him, but admitted having lived with her in Lexington. The accused's son and daughter-in-law testified that Mrs. Cassell was bothered with rats in her home, and had several times said she wanted to get some poison for them. On the occasion when the strychnine was purchased the daughter-in-law got some bread and her husband and father-in-law put some of the poison on it and it was placed in both of their homes. These witnesses testified also as to Mrs. Cassell's ill health and melancholia and as to the defendant calling excitedly for help on the night of her death. They had run over there quickly. Mrs. Cassell was unconscious at the time, and her son testified that he asked her what was the matter and she said, "Luther, I have taken poison;" and further, "Do not say anything about it;" and he promised her he would not. They had heard of rumors about the relations of the accused and the Borders girl and stated that their mother had also heard of them, but had said nothing about it. There were also rumors at the time about her relations with some of her cousins. There is some evidence of contradictory statements made by these two witnesses, such as that the wife had left her husband and declared she would not go back to him; that the defendant had said he was dissatisfied with his wife and was going to leave her; that there was no strychnine in the house; and that they were afraid of the defendant. The witnesses denied making such statements. There is other testimony as to the deceased's ill health and nervous condition, as well as to her despondent spells....
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Jones v. Com.
...which its existence may be inferred is always competent, even though it may tend to prove another distinct offense. Cassell v. Commonwealth, 248 Ky. 579, 59 S.W.2d 544. Here the inquiry sought to obtain an admission which would have thrown light on the question of who was the aggressor or w......