People v. Preston

• Decision Date: 02 December 1941
• Docket Number: No. 89.,89.
• Citation: 300 N.W. 853,299 Mich. 484
• Parties: PEOPLE v. PRESTON.
• Court: Michigan Supreme Court

299 Mich. 484

300 N.W. 853

PEOPLE

v.PRESTON.

No. 89.

Supreme Court of Michigan.

Dec. 2, 1941.

Frank Preston was convicted of will-fully and maliciously killing three cows, and he appeals.

Affirmed.Appeal from Circuit Court, Cass County; Glenn E. Warner, judge.

Argued before the Entire Bench.

Asa K. Hayden, Pros. Atty., of Cassopolis, for appellant.

Carl D. Mosier, of Dowagiac, for respondent.

CHANDLER, Justice.

The respondent is charged with willfully and maliciously killing three cows, property of Mr. Victor Waltz, on or about March 9, 1940, at the Township of Porter, Cass County, in violation of Act No. 328, § 377, Pub.Acts 1931, Comp.Laws Supp.1940, § 17115–377, Stat.Ann. § 28.609, and upon a trial in the circuit court of that county by a jury was found guilty of the offense, and sentenced by the trial judge to the state penitentiary for a period of not less than two nor more than four years.

It is from this conviction and sentence that respondent appeals.

After a careful review of the record and briefs filed herein, we find that there is but one question presented for our consideration, namely: Are the circumstances and testimony here, aliunde the confession of the respondent, sufficient to create such a probability that the death of the cattle in question was intentionally caused by human intervention and to justify the admission in evidence of the alleged confession of the respondent?

Upon the trial of the case the following undisputed facts were developed: The respondent and Mr. Waltz live on adjoining farms in Porter Township and have for a period of at least twenty years. Their buildings are about forty or fifty rods apart. In 1921 Mr. Waltz and respondent had some trouble over some hogs that respondent had sold to Mr. Waltz, which engendered considerable ill feeling, and this ill feeling appears to have continued from that time until the acts complained of against respondent. While during a portion of this time Mr. Waltz and Mr. Preston exchanged work, the families never called upon each other, and there were periods when they were not on speaking terms. In 1938 these gentlemen had some trouble over a neighborhood threshing outfit, and while it is apparent that these difficulties between these two men were trivial and inconsequential, the feeling between them was such as to justify the conclusion that they had not been on neighborly or friendly terms during a period of nearly twenty years.

On March 6, 1940, Mr. and Mrs. Waltz left their home at about 12:30 to attend the funeral of Mr. Waltz' mother at Three Rivers and returned about 4:30 or 5 o'clock in the afternoon. No one other than Mr. and Mrs. Waltz lived on the farm and Mr. Waltz did his own chores. On the morning of March 7 when Mr. Waltz went to his barn, he found that one of his cows was ailing. On March 8, five of them were ill, and he sent for Dr. Reed, a veterinarian, of Constantine, who treated them. Dr. Reed was suspicious that these cows in some way had partaken of arsenate of lead and he made an examination of the building and enclosure in which the cows were kept to ascertain if there was any paint that the cattle might have partaken of in any way, but finding nothing to account for their illness he gave them a treatment, a remedy used quite extensively upon cattle which had symptoms of scours, and left some medicine to be administered by Mr. Waltz. On March 9 one of the cows was down and the rest of Mr. Waltz' cattle were ill. He then sent for another veterinarian, Dr. Bergman, of Cassopolis, who administered to the cattle some serum. Dr. Bergman also made an examination to discover the possibility of any particular poison, any metallic poison around the barn and the barnyard, but was unable to discover anything there that would cause this illness. The veterinarian left with Mr. Waltz medicine with instructions for its administration, and returned the following day. He at that time was suspicious of poisoning by lead and arsenic, or lead or arsenic. He called again the following morning and found that one of the cows had died. He then performed a post mortem and took some of the internal organs, that is, parts of the alimentary canal and a section of the liver and kidney to the pathological department of the Michigan State College and delivered the same to Dr. Roland of that department. He also took with him for examination a sample of the feed that Mr. Waltz had been feeding his cattle. The treatment of the animals was continued by Dr. Bergman, all of them showing symptoms of sickness and later another one of the cows and a heifer died. The contents of the liver from these two animals were also taken to the laboratory by Dr. Bergman. An analysis of the organs of the animals and of the feed was made by a Mr. VanLoo, a chemist in the State Departmet of Agriculture, and his examination disclosed, both in the organs of the cattle and in the feed, the presence of lead, as well as of arsenic. His opinion, from his analysis, was that there was enough poison in the feed to cause the death of these cattle. Dr. Bergman gave as his opinion that poisoning caused the death of these three cattle.

Mr. Waltz testified that the feed given these cattle on the evening of March 6 and the morning of March 7 was from a bin of mixed feed, which was mixed by himself and from which he had been feeding these cattle for several months, and that no other feed was given the cattle except corn fodder. Also that no one other than himself, so far as he knew, participated in the feeding of his cattle, or took any part in the mixing of the feed. Mr. Waltz further testified that he had no means of knowing how the poison got mixed with the feed given his cattle.

On July 6, 1940, respondent was arrested by State Troopers Phil E. Paulsen and James Weiers at about 3 or 4 o'clock in the afternoon, and was taken to the State Police Headquarters at White Pigeon. For several hours after his arrest he was questioned at the police post by the officers about the poisoning of Waltz' cattle, during which talk respondent denied having any connection with it. In the evening Franklin P. Bush, Justice of the Peace of Constantine, St. Joseph County, was called and soon after his arrival respondent, in answer to questions by the Justice of the Peace, made a confession which was typed by Mr. Bush and signed by respondent. At the examination and upon the trial the alleged confession was admitted in evidence after the testimony of Mr. Waltz, Dr. Bergman, chemist Abraham VanLoo and Trooper James Weiers was given. The confession, which was admitted in evidence over objection of respondent's counsel, was to the effect that he and Mr. Waltz had not been on good terms for practically twenty years, that he did not like Mr. Waltz, that he felt he had been wronged by him, that he had it in for Mr. Waltz because of their various difficulties. A portion of his confession we quote:

‘Q. You then decided it would be a good idea to get even with Waltz for all this trouble he caused you? A. Yes, I thought it was pretty near time.

‘Q. What did you dicide to do to get even? A. I suppost to give that poison to them cattle.

‘Q. What kind of poison did you decide to give them? A. Arsenate of lead.

‘Q. When and where did you purchase this poison? A. It was two or three years ago. I have had it on hand to spray potatoes with for bugs.’

Respondent knew of the death of Mr. Waltz' mother according to the alleged confession and knew that Mr. and Mrs. Waltz were attending the funeral on the afternoon of March 6. The alleged confession further disclosed that when he went to the Waltz barn he took with him three tablespoonfuls of this poison and put it in the feed bin from which Mr. Waltz fed his cows. He was asked:

‘Q. You knew that that was enough poison to kill his cattle? A. Yes, it was enough, I guess.

‘Q. That was what you intended to do? A. Yes.

‘Q. You put all the poison in the bin? A. Yes. All in the bin. It was ground feed.’

The testimony of Mr. Bush, the Justice of the Peace, and Trooper Weiers was to the effect, and this was admitted by the respondet, that he was informed of his constitutional rights and...