Davis v. State
| Decision Date | 21 October 1927 |
| Docket Number | 25700 |
| Citation | 215 N.W. 785,116 Neb. 90 |
| Parties | BERT M. DAVIS v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Red Willow county: CHARLES E ELDRED, JUDGE. Affirmed.
AFFIRMED.
Bernard McNeny, Frank M. Colfer, John F. Fults and Edward J. Lambe for plaintiff in error.
O. S Spillman, Attorney General, and George W. Ayres, contra.
Heard before GOSS, C. J., ROSE, DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.
Bert M. Davis (hereinafter called defendant) was charged with administering to his wife, Blanche A. Davis, with felonious intent, strychnine poison and thereby causing her death, for which he was put on trial, convicted of murder in the first degree, and sentenced to imprisonment in the penitentiary for the term of his natural life. To review the record of his conviction, he prosecutes error to this court.
The principal errors relied upon for a reversal are: That the information is insufficient to charge defendant with murder in the first degree; error in the admission of evidence; error in the failure of the court to instruct on all the issues; errors in giving instructions to the jury; and that the evidence is insufficient to sustain the verdict.
Counsel for defendant contend that the information is insufficient to charge murder in the first degree, because, as contended, it fails to directly charge that poison was administered with the intent to take the life of Blanche A. Davis.
It will be conceded that there may be instances where one may administer poison to another which causes the death of such person, where the crime of murder in the first degree would not be committed. For instance, if a physician should prescribe and administer a poisonous medicine, with proper motives, but, through mistake, should give an over- or fatal dose, which would cause the death of his patient, he would not be thereby guilty of first-degree murder. Whether an information for murder in the first degree by the administration of poison is rendered fatally defective by the omission to charge therein that the defendant administered the poison with intent to take the life of the person to whom it was administered, we find it unnecessary to determine. Conceding, for the sake of argument only, that such an allegation is necessary, we think the information in the instant case is not vulnerable to the objection urged.
The information in the instant case charges that "Bert M. Davis, then and there being, did then and there unlawfully, feloniously, wilfully and purposely, and of his deliberate and premeditated malice, make an assault in and upon one Blanche A. Davis, with the intent of him the said Bert M. Davis unlawfully, feloniously, purposely and of his deliberate and premeditated malice to poison, kill and murder the said Blanche A. Davis." Then follows the allegation of administering the poison and her death.
The case of Schaffer v. State, 22 Neb. 557, 35 N.W. 384, cited and relied on by defendant, is not in point. The information which was condemned in that case did not contain an allegation with reference to intent, similar to the one herein set out. We think the information fairly charges that the poison was administered with the intent to take the life of Blanche A. Davis.
It may be observed in this case that the information is needlessly involved and teems with unnecessary verbiage and repetition. As heretofore pointed out by this court, an information should charge the offense in simple, concise, direct language. A suitable form is prepared and set out in Nichols v. State, 109 Neb. 335, 191 N.W. 333. Of course, the form there given would not be entirely suitable for charging murder by the administration of poison. In lieu of the second paragraph of the form there outlined, the following would be all that is necessary to charge murder in the first degree by poisoning: Attention is called specifically to the form of information contained in the opinion in Nichols v. State, supra, in the hope that those charged with the prosecution of criminal offenses will hereafter draw indictments and informations conformable to the suggestions therein contained.
Complaint is made because the trial court permitted Doctors Myers and Eggers to testify to an examination of the body and organs of Blanche A. Davis, and that in their opinion she died of strychnine poisoning. It appears that, before they made their examination and chemical analysis of parts of the body of Blanche Davis, it had been embalmed and that there was no proof in the record of the ingredients of the embalming fluid used. It is argued that before the evidence of the doctors was competent it was the duty of the state to first prove that the embalming fluid used did not contain strychnine.
We do not think the point is well taken. By the provisions of section 9576, Comp. St. 1922, it is unlawful for an undertaker to embalm a dead body with any fluid or preparation which contains strychnine or preparations, compounds or salts thereof. Moreover, it is further disclosed by the evidence that strychnine would serve no useful purpose in an embalming fluid. It is not a preservative, and the presumption would obtain that the undertaker had not violated the law; nor will it be presumed that the manufacturers of embalming fluid would use strychnine as an ingredient when it possesses no useful properties for the purpose for which embalming fluid is designed. The record also discloses that the state offered to prove the chemical composition of embalming fluid taken from a bottle which came out of the same carton as did the bottle containing the fluid used to embalm Mrs. Davis's body. This evidence was excluded on defendant's objection. It was not incumbent upon the state to prove that an embalmer or undertaker had not violated the law of the state, or to prove that the embalming fluid used did not contain strychnine. There is nothing in the record to create even a suspicion that the fluid used would account for the strychnine found in the body of Mrs. Davis after her death. The court did not err in overruling defendant's motion to strike from the record the evidence of the doctors.
Defendant contends that the evidence is insufficient to support the verdict; that it does not conclusively establish that Blanche Davis died as the result of strychnine poisoning, or that defendant administered strychnine to her.
The evidence is very voluminous. It would serve no useful purpose to outline it in detail, and we shall not attempt to do so. We think it is sufficient to say that there is evidence tending to prove, and from which the jury might properly find, the following facts to be true: That on the morning of August 30, 1925, Blanche A. Davis was taken violently ill and died in convulsions shortly thereafter; that her last illness was attended by all the symptoms of strychnine poisoning that the next day after her death there was an autopsy held, and it was ascertained therefrom that all of her internal organs were in a normal condition and such as to exclude the hypothesis that she had died of any disease; that after the body was interred it was exhumed, and...
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