Simon v. People

• Decision Date: 02 April 1894
• Citation: 150 Ill. 66,36 N.E. 1019
• Parties: SIMON v. PEOPLE.
• Court: Illinois Supreme Court

150 Ill. 66

36 N.E. 1019

SIMON

v.PEOPLE.¹

Supreme Court of Illinois.

April 2, 1894.

Error from circuit court, McLean county; Thomas F. Tipton, Judge.

Indictment of Jacob Simon for murder. Defendant was convicted, and he brings error. Affirmed.

Peirce & Porter, for plaintiff in error.

John A. Sterling, State's Atty.

CRAIG, J.

The plaintiff in error, Jacob Simon, was indicted at the February term, 1893, of the circuit court of McLean county, for the murder of Susie Hoover by administering strychnine poison to her. To the indictment the defendant pleaded not guilty, and on a trial before a jury he was found guilty as charged in the indictment, and his punishment was fixed at imprisonment in the penitentiary for life. The court overruled a motion for a new trial, and rendered judgment on the verdict, to reverse which this writ of error was sued out. Upon an examination of the record, it appears that Susie Hoover died at the home of her sister, Mrs. Anna Banks, in McLean county, on the 20th day of October, 1892. She was then past 18 years of age, a daughter of A. L. Hoover. In November, 1889, Hoover moved from McLean county to Missouri. His family then consisted of himself; his wife, a sister of the defendant; his two daughters, Anna and Susie Hoover, by a former marriage; and Stella Willoughby, a daughter of his then wife by a former marriage. The defendant went with Hoover to Missouri, to assist him in taking care of stock that he was shipping to that state. After the Hoovers arrived in Missouri, the defendant lived in the family, and did chores, and assisted some about the barn. He was then about 40 years old, and Susie Hoover was a girl of 15. Soon after the family had arrived at Freeman, Mo., the defendant commenced to pay attention to Susie. To this, Hoover and his wife objected; and, to all outward appearance, it was stopped. But it appears from the testimony that defendant secretly kept up his relations with the girl, and from letters read in evidence it seems that from June, 1890, until the death of Susie Hoover, he had frequent illicit intercourse with her. In the month of September, 1892, Mrs. Hoover died, and her body was brought to McLean county for burial. The family and the defendant all came with the remains, and stopped at the house of Mrs. Banks, a married daughter of Mr. Hoover. Hoover concluded to remain in this state, and after the burial of his wife returned to Missouri to settle up his business. In a short time he came back to this state, and again started for Missouri on Wednesday, October 19, 1892, the day before Susie's death. While the family was stopping at the house of Mrs. Banks, the defendant took Susie to Leroy, to Farmer City, and one or two other places. While at Farmer City on Thursday, before the death of Susie, they stopped with Mr. Holloway, and took dinner. While there they made arrangements to return to Mr. Holloway's place on the next Thursday, and get married. After leaving Holloway's, the defendant and Susie went to Whitsell's,'-a sister of the deceased,-and remained there over night. Next day the defendant returned to Banks' place, and remained until Sunday morning, when he left, and did not return until Thursday, the 20th, about noon. Soon after arriving, the defendant went up stairs into a room where Anna Hoover was, sick; asked her how she was, and then went across the hall where he kept his trunk, which he packed, and tied a rope around it. He then went down stairs, and the family went to the table for dinner. About 1 o'clock the defendant was asked to take dinner, but declined. He remained in the dining room until dinner was over, and, while Susie and Mrs. Willoughby were looking after the dishes, he spoke to Susie; and a whispered conversation occurred between them for a moment, when the defendant again went up stairs to the room where he had left his trunk. In a few minutes, Susie followed, and the two were in the room alone for 5 to 10 minutes. During this time, Anna (the sick sister, across the hall) was alarmed to hear Susie exclaim, ‘Don't, Jake!’ three times, and the defendant exclaimed, ‘Yes, Susie!’ three times. She at the same time heard a noise in the room like a scuffle between the parties. A short time afterwards, Mrs. Willoughby went to the room where the two parties were; and soon Mr. Banks came in, the trunk was taken down stairs, and the defendant and Banks left in a wagon for Ellsworth, a railroad station a few miles distant. In about 20 minutes after the defendant left in the wagon, Susie was taken sick with convulsions, and died in a little less than two hours afterwards. Dr. Patch, of Ellsworth, having been called, arrived at the home 10 minutes after 4 o'clock. He found Susie lying on the dining-room floor. He carefully examined all the symptoms, and questioned the dying girl fully in regard to her condition, and the cause of the difficulty. After the doctor arrived, she had five or six convulsions, and died in a convulsion about 20 minutes after his arrival, at 4:30 p. m. The nature and cause of the sickness were fully explained by Susie to the doctor a few moments before her death. The physicians all agree that the symptoms disclosed the fact that death was the result of strychnine poisoning. That evening the doctor in charge removed the stomach and uterus from the body. The uterus contained a foetus from six to eight weeks old.

On the trial the court permitted the prosecution to prove that Susie Hoover stated about 25 minutes before her death: ‘I have been keeping company with a young man. We are engaged to be married. We thought that may be I was in a family way. My monthly sickness didn't come around. He got me some medicine at Farmer City,-a capsule,-and gave it to me, to take to bring my monthly sickness on me.’ ‘What did she say, if anything, about having submitted to this man?’ ‘She said, ‘I gave way to him.” Before this evidence was admitted, it was proven before the court that the deceased stated to her two sisters, in speaking about the capsule, ‘I believe it will kill me.’ Before making this statement in her extreme suffering, she threw up her arms, and said to one of her sisters, ‘Don't leave me any more,’ and at the same time, as the sister expressed it, ‘Grasped around me.’ Dying declarations are such as are made relating to the facts of an injury of which the party afterwards dies, under the fixed belief and moral conviction that immediate death is inevitable, without opportunity for repentance, and without hope of escaping the impending danger. Starkey v. People, 17 Ill. 17. When the declarations were made the mind of the deceased seemed to be perfectly clear. One convulsion had followed another for over an hour, and each succeeding one with greater severity; and when she declared, ‘I believe it will kill me,’ and implored her sister not to leave her, in the manner disclosed by the evidence, it is apparent that she fully realized that death was near and inevitable. From the evidence before the court, but one conclusion could be reached; and that is that the deceased believed, and fully realized, that the approach of death was near at hand, from which she had no hope of escape. We think the evidence may be regarded as dying declarations, and was properly admitted by the court as such.

The defendant was called as a witness, and in his own behalf, and on cross-examination, he was asked if he was not indicted and convicted of perjury in the circuit court of Barber county, W. Va., in 1880. A general objection was interposed to the question, overruled, and the witness answered, ‘I was.’ The ruling of the court on the admission of this evidence is relied upon as error. The fact that the defendant may have been convicted of perjury would not disqualify him as a witness. His conviction could only be shown for the purpose of affecting his credibility for that purpose. The people had the right to prove a conviction, but they had no right to prove the fact by parol evidence. The judgment of the court where the conviction was had was the only competent evidence to establish a conviction; and that judgment can only be established by production of the record of the judgment, or authenticated copy of the record, as we have heretofore held in Bartholomew v. People, 104 Ill. 608. It is clear that the prosecution had no right to prove by parol that the defendant was convicted of an infamous offense, but the evidence was not objected to on the ground that the fact could not be proved by parol. It was not suggested to the court that the fact of the conviction could only be proved by an authenticated copy of the record. Had the objection been made on this ground, doubtless the court would have excluded the evidence. The general objection made by the defendant was not sufficient. Moreover, on a subsequent day the court excluded the evidence from the jury, and directed them not to consider it. While it is true a court has no right to admit improper evidence, yet when that has inadvertently been done, and the court, as soon as the mistake has been discovered, promptly rules out the evidence, a judgment ought not, as a general rule, to be reversed for such an error.

A large number of letters written by the defendant to Susie Hoover were admitted in evidence, and this ruling is objected to by the defendant. These letters...