Commonwealth v. Danz

• Citation: 211 Pa. 507,60 A. 1070
• Decision Date: 17 April 1905
• Docket Number: 218
• Parties: Commonwealth v. Danz, Appellant
• Court: United States State Supreme Court of Pennsylvania

60 A. 1070

211 Pa. 507

Commonwealth v. Danz, Appellant

No. 218

Supreme Court of Pennsylvania

April 17, 1905

Argued October 27, 1904.

Reargued February 13, 1905.

Appeal, No. 218, January T., 1904, by defendant, from judgment of O. & T. Phila. Co., April T., 1903, No. 154, on verdict of guilty of murder of the first degree in case of Commonwealth v. Catharine Danz. Affirmed.

Indictment for murder. Before MARTIN, P.J.

The facts appear by the opinion of the Supreme Court.

When Robert McKenty was on the stand he was asked this question:

"Q. She made the remark you have testified to and then went on toward the cell? A. We went on to the cell. Q. Where did you go from that point? A. To the cell room, and I brought Hossey out of the cell and at that time Mr. Donaghy was in the cell room, we were probably about as far from here to that railing from one another. Q. Hossey and the woman? A. Yes, sir; she throwing up her hands and saying, 'I don't know that colored man, I never saw that nigger.' I said 'George is that the butcher's wife on Fourth street that paid you the $51.00 for that powder?' and he said 'Yes.'"

Judge Martin:

"Q. Who is George? A. Hossey."

Mr Bell: "Q. Did she hear you say that? A. The probabilities is she did not; I cannot say whether she did or did not, I said it loud enough. That is not the one that Donaghy said he didn't hear."

Mr. Scott objects and moves to strike the witness' answer out.

Judge Martin:

The jury can pass on whether she heard it or not.

Exception for defendant. [13]

Frederick Genth, a witness for the defendant, while under direct examination was asked these questions:

"Q. And these are the two bottles which have been produced here in court and identified by Mr. Shrawder? A. Yes, sir. Q. What did you do with them? A. I examined them for arsenic. Q. What did you find? A. I found arsenic."

Mr. Bell: Confine it to the fluid used here.

Mr. Scott: But Eckels testified it was not in either kind.

The Court: My recollection of Mr. Myers's testimony is that he used the Royal Embalming fluid.

Mr. Scott: I will read from Mr. Eckels' testimony, page 35: "Q. Does that embalming fluid, Primero, you are selling to-day, contain arsenic in sufficient quantities to be weighed? A. No, sir. Q. It would be impossible? A. Yes."

Mr. Scott: I propose to contradict him upon that and show that we have examined this very Primero embalming fluid and that it does contain arsenic in weighable quantities.

Objected to.

Objection sustained, as the portion of testimony read from was cross-examination. Exception for defendant. [17]

Verdict of guilty for murder of the first degree upon which judgment of sentence was passed.

Errors assigned were (1-21) various rulings on evidence; (22-51) refusal to answer thirty points offered by defendant.

The judgment is affirmed, and it is ordered that the record be remitted for due execution of the sentence.

Henry J. Scott, for appellant. -- Circumstantial evidence is only competent to support a verdict of guilty when it excludes every other reasonable hypothesis than that of guilt: Reg. v. Hodge, 2 Lewin C.C. 27.

Since an action without motive would be an effect without cause, a presumption is consequently created in favor of innocence by the absence of all apparent inducement for the commission of the alleged offense: Will's Circumstantial Evidence, 49; State v. Moxley, 102 Mo. 374 (14 S.W. Repr. 969); People v. Ah Chung, 54 Cal. 398; United States v. Reder, 69 Fed. Repr. 965; People v. Foley, 64 Mich. 148 (31 N.W. 94); Gray v. Com., 101 Pa. 380.

The accused's opportunities to commit the crime, her conduct and alleged falsehoods prior, during or subsequent to the alleged crime, are not competent to prove the corpus delicti: Com. v. Johnson, 162 Pa. 63; Reg. v. Frost, Gurney Rep. 689.

That defendant administered tartar emetic to her husband was irrelevant and incompetent evidence.

The rule which prohibits the proof of extraneous crimes to prove the crime charged is applied by the courts of this state: Shaffner v. Com., 72 Pa. 60; Com. v. Birriolo, 197 Pa. 371.

The commonwealth should have satisfactorily accounted for not calling Dr. McFarland: Com. v. Rhoads, 23 Pa.Super. 512; Com. v. Bubnis, 197 Pa. 542.

John C. Bell, district attorney, with him Owen J. Roberts, assistant district attorney, for appellee. -- The corpus delicti was proved: Zell v. Com., 94 Pa. 258; Gray v. Com., 101 Pa. 380; People v. Hickman, 113 Cal. 80 (45 Pac. Repr. 175); State v. Heidenreich, 29 Oregon, 381 (45 Pac. Repr. 755); Fletcher v. State, 90 Ga. 468 (17 S.E. Repr. 100).

The function of determining what are the facts in the case and what inferences are to be drawn from them is for the jury, and unless the finding of the jury is entirely contrary to what the commonwealth's evidence shows to be the probable truth, there should not be any intervention or interference with the verdict: Grant v. Com., 71 Pa. 495; McCue v. Com., 78 Pa. 185; Gray v. Com., 101 Pa. 380; Com. v. Morrison, 193 Pa. 613.

The commonwealth does not admit that it was under any necessity to prove a motive in this case. If it proved a case containing every ingredient of the crime of murder, and satisfied the jury upon every one of the ingredients of the crime of murder, the mere fact that no motive could be definitely assigned for the action of the defendant would constitute no legal reason for acquitting her: McLain v. Com., 99 Pa. 86; Lanahan v. Com., 84 Pa. 80; McCue v. Com., 78 Pa. 185; Zell v. Com., 94 Pa. 258.

It is both legally and medically established beyond peradventure that in order to sustain a conviction it is unnecessary to prove that any given quantity of arsenic was found in the cadaver after death: Tawell's Case, 1 Woodall's Celebrated Trials, 162; Com. v. Zell, 94 Pa. 258.

There was no duty upon the commonwealth to call Dr. McFarland unless it saw fit to do so: Onofri v. Com., 20 W.N.C. 264; McCabe v. Com., 8 A. Repr. 45.

In a number of jurisdictions it has been held that upon a trial for murder, previous assaults, whether with the same or a different instrument, and previous attempts to take life, are admissible, as showing intent and motive: State v. Nugent, 71 Mo. 136; Medina v. State, 49 S.W. Repr. 380; Pritchett v. State, 92 Ga. 65 (18 S.E. Repr. 536); State v. Patza, 3 La. Ann. 512; State v. Merkley, 74 Ia. 695 (39 N.W. 111); Hamilton v. State, 56 S.W. Repr. (Texas), 926; State v. Walters, 45 Ia. 389; State v. Rohfrischt, 12 La. Ann. 382; Com. v. McCarthy, 119 Mass. 354; Com. v. Bradford, 126 Mass. 42.

It has always been the rule of this court in criminal, as well as civil matters, that where the court has covered the point in its general charge, or considered and answered the point in connection with another point, it is not error to fail or refuse to answer such point: McLain v. Com., 99 Pa. 86; Com. v. McManus, 143 Pa. 64; Com. v. Clark, 3 Pa.Super. 141.

Before MITCHELL, C.J., DEAN, FELL, BROWN, MESTREZAT, POTTER and ELKIN, JJ., on reargument.

OPINION

MR. JUSTICE BROWN:

By the Act of February 15, 1870, P.L. 15, it is made our duty to review both the law and the evidence in this case, and to determine whether the ingredients necessary to constitute murder of the first degree were proved to exist. The first assignment of error is based on their alleged absence. Whether they were proved to exist is to be determined by a review of the evidence produced by the commonwealth to sustain its grave accusation, for if they are there found, we cannot disturb the verdict, because it may be plausibly argued that the jury should not have believed the witnesses for the commonwealth, or that, in view of the evidence offered by the prisoner, she should have been acquitted. That a verdict might fairly have been a different one is no ground for judicial interference with the one rendered, if there was proper evidence to support it; and this is true whether such evidence be circumstantial or positive. Facts to be found from contradictory evidence are always for the jury, and never for the court. It is only when, from undisputed evidence, but one finding can follow and a jury reaches a different one, that a court must interfere and avert injustice by setting the verdict aside.

William G. Danz died June 27, 1901. On March 12, 1903, his body was exhumed and the coroner's physician made a post-mortem examination. He testified to the condition of the organs at the time the body was exhumed and delivered the heart, liver kidney, stomach, intestines, brains and part of the muscular tissue of the thigh to an expert chemist for examination. That expert testified that he had found arsenic and antimony in various organs of the body in weighable and appreciable quantities. The body had been embalmed, and, to repel any presumption that the arsenic found might have been injected into it by the embalmer, the chemist who manufactured the embalming fluid was called and testified that it contained no more than a mere trace of arsenic, which was neither weighable nor appreciable. The two physicians who had attended Danz during the last four weeks of his life testified to his symptoms. Three most eminent members of the medical profession, called as experts, pronounced them to be those of arsenical poison, and testified that, from the evidence produced by the commonwealth, they were of opinion such poison had caused the death, probably accelerated by the use of antimony. The wife of the deceased had administered the antimony to him for the alleged purpose of curing him of the drinking habit. When the prisoner was asked to allow the body to be exhumed, she said, in consenting, that it would be found full of poison, because Dr. Eberhard, one of her husband's physicians, had told her so. When s...