Graves v. People

CourtSupreme Court of Colorado
Citation32 P. 63,18 Colo. 170
Decision Date17 January 1893

32 P. 63

18 Colo. 170


Supreme Court of Colorado

January 17, 1893

Error to district court, Arapahoe county.

T. Thatcher Graves was convicted of murder in the first degree, and brings error. Reversed.

Syllabus by the Court

1. In a criminal case it is the duty of the court to see that the trial is conducted according to law, and the jury properly instructed.

2. Hearsay evidence is generally inadmissible, but to this well-established rule there are some exceptions.

3. In a trial for murder by poisoning, the statements of the deceased in narration of past events, voicing her suspicions as to the sender of the poison, are incompetent.

4. Where it is shown that the deceased, at the time of making certain statements, expected to recover, such statements are not receivable in evidence as dying declarations.

5. Res gestae are events speaking for themselves through the instinctive word, and acts of participants, not the words and acts of participants when narrating the events.

6. Where the record shows that at the time a certain class of evidence was first offered its admission was vigorously opposed, the objections to its introduction then fully argued, and renewed upon a motion to strike out, held sufficient to reserve the point, without a renewal of the objection to each question thereafter propounded.

7. Where the evidence in a criminal case is wholly circumstantial it is error to instruct the jury that they need not be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish the defendant's guilt.

Wells, Macon & Furman, for plaintiff in error.

Joseph H. Maupin, Atty. Gen., R. W. Steele, J. B. Belford, Lafe Pence, I. N. Stevens, and H. B. Babb, for the People.

[18 Colo. 171] HAYT, C.J.

Josephine A. Barnaby died in the city of Denver upon the 19th day of April, 1891, under circumstances indicating that her death was caused by arsenical poisoning. Plaintiff in error, T. Thatcher Graves, was indicted for the murder of the deceased, convicted of murder in the first degree, and sentenced accordingly. Mrs. Barnaby, at the time of taking the supposed poison, which the evidence indicated produced death, was stopping temporarily with friends in the city of Denver. She had, immediately prior to this, been traveling in the state of California, and was then on her return to her home in the city of Providence, in the state of Rhode Island. The plaintiff in error, a practicing physician in the city of Providence, was the confidential friend of the deceased, and for some time previous to her death had the entire control and management of her estate, amounting in the aggregate to something over $100,000. The major portion of this property is shown to have consisted of stocks and bonds, standing at the time in the name of plaintiff in error. He had never been required to give security for this property, and none was given. The testimony shows that at least up to a period shortly before her death the deceased had held the defendant and his family in the highest esteem as friends, and that she had unbounded confidence in his business sagacity and integrity. She had been for years a sufferer from partial paralysis of one side of her doby, plaintiff in error being her sole attending physician. When at home in Providence, she was often a visitor in his family, and while traveling was in the habit of writing him upon business and other matters frequently. Her letters, introduced in evidence, are couched in language breathing a spirit of respectful regard and concern for Dr. Graves and his family, which consisted of a wife and his aged mother. Her regard for this convicted man is further shown by two wills introduced in evidence, [18 Colo. 172] in each of which he is left a legacy of $25,000, and made her sole executor without bonds. In general, [32 P. 64] Dr. Graves' letters to Mrs. Barnaby are of like character as those from her to him, although two, written at a time when she was contemplating the purchase of property in the Adirondack mountains, and for the purpose of preventing such investment, are of a different nature. A favorite resort of Mrs. Barnaby in the Adirondack mountains of New York was sometimes called 'The Woods.' It was under the management of her friends, referred to by the witnesses as 'the Bennetts.' It was near this place that she proposed to invest. In the two letters mentioned, Dr. Graves stated that the executors of her late husband's estate were much displeased with her conduct, and would take steps to have a guardian appointed for her if she persisted in her intention to purchase. He admitted, upon cross-examination, that he knew at the time of writing these letters that some of the statements therein made were unfounded and false. Gain is ascribed as the motive for the crime. It is claimed that Dr. Graves had squandered a portion of Mrs. Barnaby's estate, and was apprehensive lest his agency might be revoked, and an accounting demanded; that he desired her death so that detection would be improbable, and also that he might thereby come into possession of the benefits conferred upon him by her will.

The circumstances surrounding the fatal illness of the deceased, in brief, are as follows: In Denver she was the guest of Mr. and Mrs. Worrell. Shortly before her arrival in this city a package came by mail to her address. It was directed in care of Mr. Worrell, and taken from the post office to his office. This package was deposited on the top of a desk in a downtown office occupied by Mr. Worrell and others, and there allowed to remain for several days. Upon Mrs. Barnaby's arrival, Mr. Worrell put the package in his buggy for the purpose of taking it up to his residence. It was, however, forgotten, and taken with the buggy to the [18 Colo. 173] livery stable, where it remained for a brief period. It was then found, and given to Mr. Worrell, and by him in turn handed to the deceased. It appears that this package was opened by Mrs. Barnaby in the presence of several parties, before it was removed from the down-town office. It contained a bottle of sufficient capacity to hold about one half pint, filled with a dark fluid, which some of those present took to be blackberry wine. This bottle, although not mailed until the latter part of March, and not received until some time in the month of April, bore this peculiar inscription: 'Wish you a happy New Year. Please accept this fine old whisky from your friends in the woods.' The package arrived in Denver April 4th. After it reached Mrs. Barnaby's hands at the Worrell residence it was placed by her in her trunk, which was locked. On Monday, April 13th, Mrs. Worrell, Sr., and Mrs. Barnaby made a trip to the country, returning in the evening. Feeling exhausted upon their return, Mrs. Barnaby proposed to make a couple of 'toddies' from the contents of this bottle. For this purpose she took it from the trunk, and prepared a drink for herself and one for Mrs. Worrell, in different glasses, using about two teaspoonfuls of the contents of this bottle for each. Mrs. Barnaby drank one and Mrs. Worrell the other. Soon after drinking, both were taken sick, exhibiting symptoms of arsenical poisoning. Mrs. Worrell recovered, and was a witness for the state upon the trial in the district court. Mrs. Barnaby, after lingering several days in great agony, died. An examination of the contents remaining in the bottle, by chemists of undoubted repute, disclosed a strong solution of arsenite of potassium, and arsenic was subsequently detected in the viscera of the deceased. As the decision in this court rests upon matters of law, a fuller statement of the facts is deemed unnecessary.

It was the duty of the district court trying the case to see that the trial was conducted according to law, and the jury properly instructed. It was the peculiar province of the jury [18 Colo. 174] to weigh the evidence, and return such a verdict as in the judgment of the jurors the evidence required. The innocence of every accused person must be presumed until his guilt is established according to the law of the land, and beyond all reasonable doubt. The rules governing the trial of criminal cases are the outgrowth of experience, and embody the wisdom of centuries. A conviction obtained in cases where a substantial compliance with these rules has not been had cannot be allowed to stand. Did the defendant have such a trial as the law guaranties? His counsel contend that he did not. They claim that certain well-established rules of the law of evidence were not observed at the trial; that the jury were not properly instructed, and that the defendant was greatly prejudiced thereby. The evidence of guilt is entirely circumstial. Of that claimed to have been improperly admitted the following may be mentioned: Mrs. E. S. Worrell, a witness for the state, was allowed to testify as follows, with reference to a conversation with the deceased, which occurred the day after she partook of the contents of the bottle: 'The next morning she seemed a little brighter. She knew she had taken poison at that time. I asked if she supposed the Bennetts could have sent that. * * * I asked her if she thought the Bennetts could have sent the stuff. She said, 'No.' I asked her, 'Do you think Dr. Graves could have sent it?' and she did not answer me.' This testimony was received against objection, and after its exception the court overruled a motion to strike it out. Mrs. Nancy B. Allen, another witness for the state, testified to a conversation had by the witness with Mrs. Barnaby, as follows: 'The next morning she seemed more quiet. Had become partially warm, and seemed inclined to talk. Edward Worrell, Jr., came into the room, and asked her how she felt, and took hold of her hand; and after he went out she says: 'How good that boy is to me. He's like my own son in his [18 Colo. 175] kiudness to me. You have all...

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