Day v. Commonwealth

• Decision Date: 19 January 1917
• Parties: DAY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

191 S.W. 105

173 Ky. 269

DAY v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 19, 1917

Appeal from Circuit Court, Carter County.

Sarah Day was convicted of murder, and appeals. Reversed and remanded, with directions.

Sampson J., dissenting.

H. L Woods and A. J. Counts, both of Olive Hill, for appellant.

M. M Logan, Atty. Gen., and D. O. Myatt, Asst. Atty. Gen., for the Commonwealth.

HURT J.

The appellant, Sarah Day, a married woman of 40 years of age, and who had been married to her husband, James Andrew Day, for 19 or 20 years, and who had three children, one of whom was married at the time, was, together with one Bob Sparks jointly, indicted in the Carter circuit court, and charged with the murder of her husband, James Andrew Day, by the administration to him, with the intent to murder him, of arsenic and other poisons to the grand jury unknown. The indictment charged that appellant and Sparks jointly committed the murder by administering arsenic and other poisons unknown to the grand jury to the deceased, and it further charged that each of them administered the poison, and that the other was present for the purpose of and aided, assisted, encouraged, incited, and abetted the one administering the poison to commit the crime. Separate trials were requested by the accused, and the commonwealth's attorney elected to proceed first against the appellant. The trial resulted in a verdict of the jury and a judgment of the court, by which was imposed upon her a sentence of imprisonment for life. Grounds for a new trial were filed, and the appellant moved the court to set aside the verdict of the jury and judgment of the court to grant her a new trial, but her motion and grounds were overruled.

The grounds upon which a reversal of the judgment is sought are: (1) The admission of incompetent evidence over the objection of the appellant; (2) the court misinstructed the jury; (3) the court failed to instruct the jury upon the whole law of the case; (4) the verdict is contrary to law, and not sustained by the evidence; (5) the jury, while trying the case, was taken by the sheriff, in charge of them, to a picture show and there permitted to witness a moving picture, the subject of which was a woman being tried for the murder of her husband.

The facts of the transaction, as developed by the evidence, show that James Andrew Day was about 52 or 53 years of age, and resided with the appellant and a young son, about 13 years of age, in the village of Enterprise, in Carter county, which is three or four miles from Olive Hill, at which latter place the married daughter of appellant and deceased lived, where she is the wife of a merchant. The deceased had been engaged for some time, as a laborer, at a brickyard, near Enterprise, to which he would go each morning and remain during the day, returning to his home in the evening. He regularly took with him from his home when he was going to work at the brickyard, his dinner, which it is presumed that the appellant prepared for him.

Several years ago the deceased employed Bob Sparks to work for him for a time, during which he resided at the home of the deceased, and thereafter, for a time, boarded at the house of the deceased. Sparks is now a young man about 27 years of age. While being about the home of deceased, Sparks and appellant formed habits of intimacy, which, during the last year of the life of deceased, and probably for a longer period, theretofore, resulted in their frequently committing acts of sexual intercourse, and exhibiting toward each other demonstrations of affection. Witnesses testify to having seen them engaged in embracing and kissing each other, and at one time, they were discovered occupying the same bed, and on other occasions, witnesses testify to having made arrangements between them for meetings at places, where they would be out of the sight of other people. During this time Sparks resided in the neighborhood, and almost every day, at some time during the day, would be at the home of appellant. Sparks and appellant were seen at different times in company with each other upon the railroad trains, and upon one occasion went to Ashland together and remained overnight. The appellant, in a small locket, which she sometimes wore, had a picture of Sparks, and certain pictures of his were found in a kitchen safe at her home after the death of deceased. It does not appear that deceased ever made any objections to Sparks' intimacy with appellant, or that he knew of it or suspicioned the truth about it. Sparks was on some occasions at appellant's home when the deceased was present. There does not appear to have been any trouble or estrangement between deceased and appellant on account of Sparks' intimacy with her. In fact, it appears that he was told about it, but persistently refused to believe it, or to give any attention to it. The only ill feeling that is proven to have occurred between the appellant and her husband was that a year or two before his death a witness testifies that appellant, being much enraged, left the dwelling house and went toward the stable, with the declaration that she was going to secure the axe and kill her husband, applying to him an approbrious epithet, but it does not appear what this controversy was about, and it apparently ended in nothing, as they were ever after upon friendly terms, so far as the evidence discloses. It is also proven that some months before the death of deceased he had some whisky, which he was saving for the purpose of refreshing himself when attending court at Grayson; that his small son and others drank the larger part of it, and filled the vessel with water, and as the husband was going toward Grayson he took a drink out of the vessel and when he discovered its worthlessness, he threw it away, and probably accused the appellant of having put the water in it. She, in telling about it, said she did not put the water in it, but if she had an opportunity again she would put "pizen" in it. Another witness testified that some months before the death of deceased, he came home in the evening with his dinner uneaten, and said it smelt like it had been cooked with matches. The appellant at the time said that nothing of the kind had occurred, and she and the children presently ate the dinner. On another occasion, in the spring or summer before the death of deceased, while he and his family were eating supper, a little niece took a cup off of the table in which to pour coffee for the deceased, when, as she says, she discovered some blue substance in the bottom of the cup, and called appellant's attention to it, when appellant told her to get another cup, which she did. It seems that this blue substance was probably bluing, which was used in washing clothing, and appellant so states. There was no circumstance in the evidence which directly proved that any arsenic or poison of any kind was ever administered to deceased by any one, either intentionally or unintentionally. The case against appellant depended entirely upon circumstances, both as to the cause of the death and the administering of poison by the appellant. Evidence was given by a druggist, who has a place of business in Olive Hill, that on the 29th of December the appellant purchased 10 cents worth of arsenic in a powdered form, which she said, at the time, she intended to use for the extermination of rats. The same witness testified that on the 27th day of January following she bought another 10 cents worth of arsenic of the same kind, which she said that she was procuring at the request of a neighbor. The appellant denied the making of these purchases, but stated that in the fall previous to the death of deceased she bought from the same druggist a small quantity of Fowler's solution of arsenic, which is an arsenical preparation, less strong in its action than the powdered form, which she used, according to a prescription, for her stomach and for her complexion. In this statement she is corroborated by her sister. She also testified that about the time the druggist claimed that she purchased one of the quantities of arsenic in powdered form she purchased from him the vial of white vitriol for a neighbor, who had requested her to buy it for him, and this neighbor corroborated her and testified that she delivered the vitriol to him. It was also in evidence that during the months of December and January that the druggist was continually under the influence of intoxicating liquors or some kind of a drug, which gave him the appearance of being in a drunken condition. In the latter part of January or the early half of February, the deceased was sick with a complaint which the physician, who was called to see him diagnosed as la grippe. The sickness was attended with vomiting, but lasted only a short time, and the physician was called to see him only one time. The deceased continued to work until in the month of July, when he again complained and went to see a physician. On the 26th day of July he became bedridden. A physician visited him at this time, and continued his visits each day, with the exception of one, until the 6th day of August, when deceased died. This physician states that in his opinion the deceased was afflicted with a strong poison of some character operating in his system, and that the symptoms of his sickness were the same as those exhibited by subjects of arsenical poisoning. On the 27th day of July, he prescribed and gave to him a treatment calculated to eliminate the poison from the patient's body, which, from the evidence of the various physicians, who gave testimony, might be accomplished in from 10 to 20 days, but the weight of the evidence tended to show that arsenical poison could not be eliminated within that time. The appellant was...