Levering v. Commonwealth

• Citation: 117 S.W. 253,132 Ky. 666
• Parties: LEVERING v. COMMONWEALTH.
• Decision Date: 10 March 1909
• Court: Court of Appeals of Kentucky

117 S.W. 253

132 Ky. 666

LEVERING v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 10, 1909

Appeal from Circuit Court, Jefferson County, Criminal Branch.

"To be officially reported."

Charles Levering was convicted of murder, and he appeals. Affirmed jury.

Wills &amp Todd, Walter E. Huffaker, and R. F. Peak, for appellant.

Jas Breathitt, Atty. Gen., T. B. McGregor, Asst. Atty. Gen., and Gilbert & Gilbert, for the Commonwealth.

CARROLL J.

Under an indictment charging him with the murder of his wife, by administering to her strychnia, a deadly poison, committed in manner and form as follows, viz.: "That he did unlawfully, willfully, maliciously, feloniously, and of his malice aforethought mix with other substances, to wit, flour and coal soot, and then and there did place same in capsules, and, the said capsules containing said poison as aforesaid, did then and there unlawfully, willfully, maliciously, feloniously, and of his malice aforethought put and place in the room and house of the said Marry Levering, intending that the said Mary Levering should take and swallow said poison so mixed and placed in said capsules as aforesaid, by mistaking the same for salutary medicine, and the grand jurors aforesaid say that the said Mary Levering, who had theretofore been induced by said defendant to believe said capsules then containing said poison contained healthful and beneficial substances, and not then knowing that said capsules contained a deadly poison, but believing them to contain healthful and salutary substances, did take and swallow said capsules containing said deadly poison, by reason of which she became sick, and did then and there presently die"--the appellant was put upon his trial, and by the verdict of a jury found guilty of murder, and his punishment fixed at imprisonment in the state penitentiary for life. A reversal is asked (1) because there was no evidence conducing to show that appellant committed the crime charged; (2) because the court erred to his prejudice in admitting incompetent testimony; and (3) for alleged error in instructing the jury upon the subject of accomplices.

The theory of the defense is that if Mrs. Levering, who was somewhat addicted to the liquor habit, and occasionally took morphine, died from strychnia poisoning, she took the strychnia with suicidal intent, and this theory finds some support in statements, reputed to be made by her more than once, that she intended to take her life, and in a note that was found lying on the dresser in the room where she was found dead, in which she said: "My dear husband: You will be somewhat surprised when you shall receive this letter. My soul will be in Heaven, this being my second attempt to end my life to-day. Tell my brother and sister good-bye for me. I have given you everything I have possessed, to be yours forever. Don't permit any services in church over my body. Pray for me at grave, and meet me in Heaven. Your wife, Mary." But the authenticity of this note is strongly attacked by the commonwealth, and there is some evidence conducing to show that it was prepared by Levering, although the evidence as to whether it was or not is very unsatisfactory. As also tending to show that she did not take the medicine with suicidal intent is the fact that shortly before taking it she was in a cheerful humor, and her condition when found indicated that she did not expect to kill herself. It is earnestly pressed upon our attention by counsel for the appellant that there was no evidence conducing to show (1) that appellant administered to or caused his wife to take medicine that he knew was a deadly poison, but that she believed it to be a healthful compound; (2) that his wife died from the effects of strychnia poison. It cannot be doubted that unless the commonwealth introduced some competent evidence, direct or circumstantial, tending to show that appellant willfully and maliciously administered or caused, in the manner stated, his wife to take strychnia poison, and that she took the same believing it to be healthful or salutary medicine, and died from the effects of it, the jury should have been directed to find appellant not guilty, because it is indispensable to sustain a conviction that both of these things should exist. Commonwealth v. Murphy, 109 S.W. 353, 33 Ky. Law Rep. 141. But it must also be kept in mind that in criminal cases this court is not authorized to reverse the judgment of the lower court upon the ground that the verdict is flagrantly against the evidence, or not supported by sufficient evidence. We are restricted to the single inquiry whether or not there was any evidence before the jury conducing to show the guilt of the accused. Vowells v. Commonwealth, 83 Ky. 193; Patterson v. Commonwealth, 86 Ky. 313, 5 S.W. 387; Green v. Commonwealth 83 S.W. 638, 26 Ky. Law Rep. 1221; Martin v. Commonwealth, 106 S.W. 863, 32 Ky. Law Rep. 657.

For the purpose of determining whether or not there was any evidence to support the propositions necessary to sustain a conviction we will proceed to examine with some care the testimony. The appellant and the deceased were married in 1901. She died on August 15, 1905; but the indictment was not returned until May, 1907. The deceased was the fourth wife of appellant, and owned property estimated to be worth between $10,000 and $15,000. No children were born of the marriage, nor did the deceased have any children by her former marriage with a man named Conn. There was evidence for the accused that Levering was kind to his wife, and that the relations between them were agreeable. After her death a paper purporting to be her last will was produced by the appellant, in which he was made the sole beneficiary of the property. The probate of this alleged will was resisted by the relatives of the deceased, and after a contest over its validity in the Shelby circuit court, the paper was rejected. From the judgment rejecting the paper, an appeal was prosecuted to this court, and the judgment of the lower court was affirmed in Livering v. Russell, 100 S.W. 840, 30 Ky. Law Rep. 1185. Soon after the decision by this court, the indictment was found, and it seems probable that criminal action was induced by the result of the controversy over the will and the subsequent disclosures made by witnesses, whose testimony will be hereafter noticed. That the paper purporting to be a will was a forgery there is no room to doubt; and it is the contention of the commonwealth that the appellant accomplished the death of his wife for the purpose of procuring her estate. The home of appellant and his wife was in Shelby county, Ky. where they lived on a farm owned by her. But appellant owned a house in Louisville, in which, although rented out, he retained two furnished rooms, at which they lived when in the city. The deceased had been occupying these two rooms for some weeks before her death, and on the Sunday before she died appellant came in from the country to see her, but she did not return to her Shelby county home with him, desiring to remain in Louisville a few days longer. On the Thursday morning following appellant drove into Louisville in his buggy, going first to the home of Annie Gray, and from there to the house in which his wife was living, arriving at the latter place about 9 o'clock in the morning. When he went into the room he found her lying on the bed dead. He immediately went out on the street, and the first person he saw was a Dr. Wilhoit, whom he accosted with the request that he accompany him into the house. This the doctor did, and upon making a hasty examination of the deceased, pronounced her dead, and telephoned for the coroner. The coroner, who came at once in response to the message, testifies that he examined the body, and made a very critical examination of the person, but did not deem it necessary to use a knife in the case. Asked if he could state the cause of her death, as well as other relevant questions in connection therewith, he answered, in substance: "I will tell you--merely give you my conclusion. She was lying on her back, her arms slightly flexed across her chest; limbs drawn in; her feet slightly turned out; her jaws very tightly clenched; peculiar facial expression; very pale; the back part of her body rather bluish; and thought she had died from some convulsive poison, and the further evidence led me to believe that she had died from strychnia. I found her body in the sleeping room; lamp burning; the blind was down; she was dressed in her gown. I found powder on the table in a pasteboard box. The powder was very bitter. I felt sure it was strychnia; I am familiar with it. I put it in my pocket, took it down to the coroner's office, and kept it there a great many months, but did not have it analyzed; made no analysis of anything that was found in her stomach." Asked if he could state if the powder he found in the box was strychnia, he said "I cannot mathematically swear that it was, but from long experience with strychnia--it had a crystal appearance and an intensely bitter taste--it was so perfectly evident to my mind, that I did not analyze it further."

We think the evidence of the coroner tonded to show that the deceased died from the effects of strychnia poisoning. True it is not as full, clear, or satisfactory as it might have been if a post mortem examination had been held, or an analysis of the contents of the stomach made; but it furnished, in connection with other testimony, sufficient evidence of the cause of her death to warrant the jury in believing that strychnia poison caused it. At any rate, it cannot fairly be said there was no evidence that the deceased died from the effects of strychnia poisoning, because the coroner, who was a practicing physician, gave it as his...