McBride v. People

• Decision Date: 24 September 1894
• Citation: 37 P. 953,5 Colo.App. 91
• Parties: McBRIDE v. PEOPLE.
• Court: Colorado Court of Appeals

37 P. 953

5 Colo.App. 91

McBRIDE v. PEOPLE.

Court of Appeals of Colorado

September 24, 1894

Error to district court, Arapahoe county.

Edward McBride was convicted of murder in the second degree, and brings error. Reversed.

Evidence of previous quarrels and assaults by a husband upon his wife are not admissible on his trial for murdering her until the fact that she was murdered has been established; and, where the proof of the corpus delicti is inconclusive, the introduction of such evidence before making proof of the corpus will be deemed prejudicial.

In March, 1892, plaintiff was tried for the murder of his wife was convicted of murder in the second degree, and sentenced for life. The wife died December 31, 1891, as supposed and alleged, from injuries inflicted by the husband in beating and kicking her, some three weeks previous. The husband and wife kept a grocery store, and sold spirituous liquors and beer. According to all the testimony, both were confirmed inebriates, and had been for two or three years, getting stupidly drunk, sometimes jointly or in company with each other, and at other times individually and separately. When under the influence of liquor, which was most of the time towards the close of the wife's life quarrels and personal encounters were frequent. Previous to any evidence establishing the corpus delicti, being the first evidence introduced, the prosecution, by several witnesses made proof of former drunken quarrels of the husband and wife, proving frequent personal conflicts for two years before the death, throwing bottles and other missiles at each other, but no evidence that those thrown by the husband hit the wife. The evidence of all was that they never saw him hit or kick her. The conditions were tersely and pathetically described by the 12 year old son in his evidence, as follows "Defendant is my father. Mother died December 31, 1891 at night. Father was at Houston's. He went away Monday morning. Mother's eyes was black. Saw disturbance between father and mother. Don't know how many times. Threw cups and bottles at each other; sticks and brickbats. He kicked her out of the door. Father hit her with a boot, and she hit him." Cross-examination by Mr. Dunklee: "They were both drunk. Have seen them drunk often. When they were drunk, they would fight." The evidence establishes the fact that the wife was so addicted to the use of liquor that, for a long time previous to the alleged injuries, she was hardly ever free from its influence, and at times helplessly drunk; that, previous to the alleged assault by the husband, she had fallen down cellar; had fallen in other places. Once she was found lying outside of the house. At another time she was found, with two children, some distance from the house, in a ravine, without cover or consciousness, in cold, inclement weather. Some two weeks before her death, she was confined to her bed, and on December 28th a physician, Dr. Bilby, was called. Her condition until the time of death he gave as follows: "Was called to see Mrs. McBride, December 28, 1891, in the morning. Saw McBride himself, his wife, and two or three children. Mrs. McBride was in a critical condition. Had an inflamed throat; was vomiting blood; had a pain in her stomach; also complained of her throat. Saw her five times before she died, December 31st. Her throat was in a very bad condition, and she said she had not been able to take any nourishment for two weeks. Throat looked as though she had been taking carbolic acid. He said she had been on a protracted spree, and had drank about two gallons of liquor in two weeks. I made an examination the second visit, on the 29th. Found a bruise on her eye, a number of bruises on her body, and bruises on the right side, one on left hip, and one an inch and a half below the nipple That was all the bruises I found. She continued to get worse; could not retain any nutrition; vomited blood as often as every ten or fifteen minutes. Q. State to the jury the condition of deceased when you called December 28th. A. I stated yesterday, I found her very much emaciated, complaining of throat trouble, vomiting blood, pain in the bowels, little grievance in abdominal cavity. That was her condition. Skin pale. Face poor and emaciated. Made no chemical examination of her urine. Q. Doctor, what, in your opinion, caused the death of this woman? (Objection. Overruled. Exception.) A. Lack of nutrition and loss of blood, caused by some internal injury. Q. From your examination, what, in your opinion, caused the internal injury? (Objection. Overruled. Exception.) A. From the blows that had been delivered on the external parts." Cross-examination by Mr. Dunklee: "She told me December 28th that she had been drinking, for stimulants. Her throat looked as though she had been taking something. That is why I asked her. On the first visit, I gave her bismuth, to try to allay the vomiting, chloride of potash and tincture of iron for the throat trouble, with fomentum over the abdomen. She was much run down. It seemed to be a case of extreme exhaustion. I told Mr. McBride that she had what some people might call 'la grippe.' Her skin was pale, whitish. Gave a Dover's powder the third visit. Made no examination of urine, except looking at it. Can tell by the color of urine whether there is albumin in it or not. It was a careful examination. Think there was no albumin in the urine, because it was a normal color. Do not know that the urine I examined was Mrs. McBride's except what the nurse said. Q. Doctor, it is a fact, then, that you believe that was an internal injury? A. Yes, sir. Q. Believe that now? A. Yes, sir. Q. Believe it was a rupture? A. Yes, sir; of the stomach and intestines. Q. Suppose that on a post mortem examination of the person, in which all parts of the internal organs were examined, and there was no rupture and no internal injury whatever, would you still say that the blood came from a rupture? A. I would not if I made the examination or seen the examination made. Q. But you would not trust any other physician,--is that right? A. Under that condition, I would, of course, have to give up that I was wrong." Dr. Bilby was asked the following question in regard to his first visit (December 28th): "Didn't her husband say to you in her presence that she had been on a two-weeks spree? A. Yes, sir; she said she had been drinking. *** He said she had been on a protracted spree, and had drank about two gallons of liquor in two weeks." An official autopsy was had, made by Drs. E.R. Axtell and R.B. Knight. Dr. Knight testified, after stating in regard to external bruises and discolorations: "I would say that she died of hemorrhage and exhaustion. *** We found evidences of an old inflammation of the mitral valve of the heart of deceased, in the last stages of Bright's disease, and of hemorrhage from the nostrils; and, the patient lying in bed, the blood would naturally go into the stomach, and be thrown off by vomiting. There was no rupture of the stomach. None of the bruises would reach the internal organs." When recalled, in answer to an elaborate hypothetical question, wherein it was assumed that the woman had been knocked down, jumped upon, and violently kicked in the abdomen and near the kidneys: "Assuming all those added to the post mortem, what do you now say in your opinion? A. That the woman died of exhaustion, and from chronic alcoholism, with probably the Bright's disease as a factor in it. The blood would have a marked effect in bringing about the dissolution." And, in answer to questions by the jury, he testified as follows: "By the Jury: Could not tell the cause of death from the autopsy? A. To tell whether the deceased died of Bright's disease, would have to take into consideration the symptoms while living. This woman did not die of a shock. There were no evidences of any disease except Bright's. By the Jury: If this woman received the blows that caused those black and blue spots that was on the body, that you testified to, they would cause the stomach to be ruptured,--that would cause death? A. If the stomach was ruptured; but the stomach was not ruptured. Q. What would cause the throwing off of blood? A. I don't know. A dozen causes,--an inflammation of the membrane of the stomach; indigestion; of taking things into the stomach that could not be digested; a degeneration and breaking down of the walls of these vessels,--dozens of causes. By the Jury: In the early part of your examination, you said that a kick in the abdomen, and also striking the front part of the stomach, might produce congestion of the kidneys? A. Yes, sir. Q. Did you find, on your post mortem examination, any indication of a blow on the front part of the person? A. We did not." Dr. Axtell testified: "We found the mitral valve of the heart affected. The kidneys were affected; also the capsule strips indicated Bright's disease. *** We found no internal rupture, *** no internal wounds. *** The stomach was normal. Q. From the symptoms you saw there, did she have Bright's disease? A. I did not see the woman until after her death, but what we saw in her kidneys, she had Bright's disease. The diagnosis I made at the time was a chronic form."

Statements made by deceased shortly before death were allowed in evidence as dying declarations. The foundation for their admission was as follows: On the morning of December 29th (Dr. Bilby), "I says to her, 'You might just as well tell me what brought you on.' She says, 'He first struck me with his fist, and knocked me down, and jumped on me, and kicked me. That is what caused these bruises, and also the bruise on my eye.' She told me she did not think it was worth while for me to come back; did not think I could do her any good." On the evening of the...