Dennison v. State, 5 Div. 550

• Decision Date: 30 June 1953
• Docket Number: 5 Div. 550
• Citation: 66 So.2d 552,259 Ala. 424
• Parties: DENNISON v. STATE.
• Court: Alabama Supreme Court

Page 552

66 So.2d 552

259 Ala. 424

DENNISON v. STATE.

5 Div. 550.

Supreme Court of Alabama.

June 30, 1953.

Rehearing Denied Aug. 6, 1953.

W. Carver Woodall, Tallassee, for appellant.

Si Garrett, Atty. Gen., and Arthur Joe Grant, Asst. Atty. Gen., for the State.

SIMPSON, Justice.

Mrs. Earle Dennison was convicted of murder in the first degree for taking the life of her two and one-half year old niece, Shirley Dianne Weldon, by administering arsenic poison. The death sentence was imposed and she appeals from that judgment.

Appellant was ably represented by court-appointed counsel who, responsive to his duty in the premises, orally argued the case on submission here and has filed brief in support of the propositions advanced as error. A careful consideration, however, has convinced us that no error prejudicial to the substantial rights of appellant intervened pending trial and that the judgment must be affirmed.

Mrs. Dennison is a trained nurse of more than twenty-five years experience and has been a member of the nursing staff of the Wetumpka General Hospital for several years and was so employed at the time of the taking of the life of the little child and up until her arrest. After her arrest she confessed to the crime and the confession, as well as other evidence, tends to show she administered the poison by placing it in an orange drink which the little girl drank from a measuring cup, and after the child became very ill and vomited, appellant apparently gave her a drink of Coca-Cola, also containing arsenic poison, which caused the child to vomit again. Shirley Dianne was taken to the hospital about 4:55 P.M. and died some few hours later. An autopsy performed by the State Toxicologist, Dr. C. J. Rehling, indicated she had died of arsenic poison. An examination by this well-known expert of the Coca-Cola bottle, as well as the measuring cup, disclosed a small sediment of arsenic poison and the little girl's dress, as well as her mother's which had also become contaminated from the child's regurgitation, showed a large quantity of arsenic poison. About 5:30 on the same afternoon, while Shirley Dianne was in the hospital, appellant left the hospital and went to Deatsville and paid a premium on a $500 life insurance policy she had taken on the life of the child, which was about to lapse for nonpayment of premium and in which she was the sole beneficiary. There was evidence that appellant had applied for a policy in the amount of $5,000 on the child's life, which had also been issued and on which she had paid the premium, she being the principal beneficiary therein. If, therefore, it were necessary to search for a motive we would find it here.

The first contention for error is that these articles containing the poison and a towel and another Coca-Cola bottle, which contained no arsenic, were improperly allowed in evidence because not properly indentified and not shown to have been in substantially the same condition as when the offense was committed. The evidence identifying and connecting these articles to sustain their admissibility was: The articles were at the home of the Weldons (parents) when they took the little child to the hospital and within a few hours thereafter, after the child had died, the father, Gaston Weldon, went back to his home, placed the articles in a paper sack, taking the sack and contents with him to his brother's home and kept them in the bedroom where he slept that night. No other person or persons handled the sack or contents so far as appeared, and on arising the next morning he left the sack and contents in that bedroom, made a trip to Wetumpka and then returned soon to his brother's home and took the sack with its contents back to Wetumpka to the office of the county coroner, Dr. W. A. Edwards, who opened it and looked in it in the presence of witnesses. Dr. Edwards then and there delivered the sack and contents to Dr. Rehling. Upon receiving these articles, Dr. Rehling took charge of them, took them to his office at Augurn, made a scientific analysis of each and produced them on the trial. They had been in his sole custody since he received them. All of the witnesses who testified with reference to the articles showed that they appeared to be in the same condition when turned over to Dr. Rehling as when Weldon procured them from his home after the child's death and there is no evidence affording the slightest inference that anyone tampered with the articles before or after he procured them at his home. The testimony is clear that appellant carried the measuring cup into the kitchen and also the Coca-Cola bottle, out of which receptacles the child had drunk. These containers had been rinsed out and, although no one saw appellant rinse them out, she did go to the kitchen with them. The State clearly met the burden of duly identifying and connecting these articles so as to authorize their introduction.

The pertinent rule is that articles or objects which relate to or tend to elucidate or explain the issues or form a part of the transaction are admissible in evidence when duly identified and shown to be in substantially the same condition as at the time of the offense. The preliminary proof identifying and describing the considered articles fully complied with the rule and under no sort of theory would the trial court have been warranted in refusing their admission. 22 C.J.S., Criminal Law, § 709, page 1203; 20 Am.Jur. 602, § 719; Alabama Coca-Cola Bottling Co. v. Pope, 232 Ala. 32, 166 So. 682; Fitzhugh v. State, 35 Ala.App. 18, 43 So.2d 831; Smith v. State, 247 Ala. 354, 24 So.2d 546; White v. State, 249 Ala. 501, 31 So.2d 335; Powe v. State, 214 Ala. 91, 106 So. 503; Hardley v. State, 202 Ala. 24, 79 So. 362; Lakey v. State, 20 Ala.App. 78, 101 So. 537, certiorari denied 211 Ala. 615, 101 So. 541; Mitchell v. State, 94 Ala. 68, 10 So. 518.

The next insistence of error relates to two confessions of the defendant, one made to Mrs. Edwina Mitchell, Superintendent of Julia Tutwiler Prison for Women, and a second one to Dr. Rehling. It is argued that these confessions were not proven to have been voluntary due to the physical condition of the defendant and the circumstances of their narration. As to this the evidence shows: The confession to Mrs. Mitchell was made about 8:30 A.M. on May 17, 1952, in the hospital ward of the prison in the presence of Mrs. Mitchell and the Assistant Superintendent, Mrs. Chambliss, after Mrs. Mitchell had asked her if she wanted to make a statement. The defendant said she did and proceeded to make a confession which Mrs. Mitchell reduced to writing and the defendant signed. Proper predicate was laid for the introduction of this confession by proving it to have been free and voluntary. The confession to Dr. Rehling, with the Sheriff of Elmore County and perhaps others present, was made the same day a few hours later. The confession to Dr. Rehling was not written down in her exact words but was in substantial effect that as related by her. It was read over to...