State v. Blydenburg

CourtUnited States State Supreme Court of Iowa
Writing for the CourtWEAVER
Citation112 N.W. 634,135 Iowa 264
Decision Date03 July 1907
PartiesSTATE v. BLYDENBURG.

135 Iowa 264
112 N.W. 634

STATE
v.
BLYDENBURG.

Supreme Court of Iowa.

July 3, 1907.


Appeal from District Court, Hardin County; J. H. Richard, Judge.

Indictment for murder in first degree. Verdict of guilty, and sentence of imprisonment for life. Defendant appeals. Reversed and remanded.

For former opinion, see 104 N. W. 1015.

[112 N.W. 635]

Wade, Dutcher & Davis, for appellant.

H. W. Byers, Atty. Gen., and C. W. Lyon, Asst. Atty. Gen., for the State.


WEAVER, C. J.

Jennie Blydenburg, wife of the defendant, died at their home in Eldora, Iowa, on May 29, 1903, and at the October, 1903, term of the district court for Hardin county, the grand jury returned an indictment, charging him with her murder by arsenic poisoning. To this charge he pleaded not guilty, and from the judgment entered against him has brought the case to this court for the review of certain assigned errors. To their intelligent consideration, it is essential that we state some of the material facts. Defendant and deceased were married in Ohio in October, 1902, and soon thereafter came to Eldora, Iowa. He was then about 38 years of age, and she several years his senior. There is some evidence tending to show that some disagreement arose between them over property and other matters, but they continued to live together in at least outward appearance of harmony. The great preponderance of the evidence tends to show that the wife was in poor health for some time prior to her death, and was complaining of kidney trouble, though she was not confined to the house. On Sunday, May 24, 1903, she went to church alone, the defendant remaining at home with the children by a former marriage, a daughter of 16 and a son of 13 years of age. According to the testimony of defendant and of his son and daughter, the latter prepared the dinner

[112 N.W. 636]

without assistance, but there is evidence of alleged admission on defendant's part that he prepared it. The deceased returned from church about noon, and a little later she and her husband and the two children gathered at the table and partook of the dinner. About 7 o'clock in the evening she complained of sickness at the stomach and headache, and soon began vomiting. About 8 or 9 o'clock defendant called a physician, Dr. Gethman, who seems to have then thought the sickness had been produced by food which deceased had eaten. He prescribed arsenic as a suitable remedy, and left the medicine for her use. At nine o'clock on the following morning defendant called the doctor again, saying his wife was still very sick. At this visit the physician prescribed for the patient bismuth and nux vomica, which is the seed or material from which strychnine is prepared. On Tuesday or Wednesday another physician, Dr Morse, was called in, and diagnosed the case as one of uræmia, a decease in which constituents of the urine, ordinarily eliminated by the kidneys, are retained in the blood. To satisfy himself upon the point, he analyzed a specimen of the urine of the patient with the result confirming his diagnosis. Dr. Morse also prescribed subnitrate of bismuth. The sickness of the deceased did not yield to treatment, and on the evening of May 29th she died. Her body was embalmed by injecting into the arteries and into the stomach and abdominal cavity at least a half gallon of embalming fluid, containing a very large percentage of arsenic. On the following day the body, accompanied by the defendant, was taken to Ohio, the former home of the deceased, and there buried. Thereafter suspicion having been aroused as to the cause of her death, the grave was opened on June 29th, and a local physician made a post mortem examination, removing from the body the left kidney and parts of spleen, heart, liver, lung, stomach, and duodenum, which specimens were forwarded to Dr. Vaughn, an expert chemist at Ann Arbor, Mich. The examination by Dr. Vaughn developed the presence of a large amount of arsenic in the body. There is no evidence to show that defendant even purchased or procured or had any arsenic in his possession. It is conceded, however, that he had on one or two occasions some months prior to the death of his wife purchased a rat poison, known as “Rough on Rats,” for the professed purpose of destroying the rats which infested his premises. It is the claim of the state, to which we shall again refer, that this poison is composed largely of arsenic. In addition to the matters already related, the state relies for the support of the verdict on other minor circumstances too numerous to be set out at large, but among the most important of which we may mention alleged statements by defendant indicating his desire to get property owned by his wife, alleged attempts by him to procure insurance on her life, words and acts indicating a lack of consideration or affection for her, and the alleged discovery upon the post mortem examination of discolorations and softened spots or patches upon the walls of the stomach, indicating, as it is claimed, the presence of the poison in the stomach before the death of the deceased. Practically all of the alleged incriminating circumstances, statements, and admissions are denied by the defendant, in some of which denials he is quite strongly corroborated, while the expert witnesses for the defense take issue with those of the state as to the condition of the stomach and what those conditions indicated. We now turn to the errors assigned by the appellant for a reversal of the judgment of conviction.

1. As appellant was charged with the commission of murder by the administration of arsenic, the possession by him of arsenic at the time of the alleged offense was a necessary condition of his guilt. It was very important, therefore, for the state to trace, if possible, that particular poison to his hands. The only proof offered for which such effect is claimed was, as we have already stated, that appellant had on one or more occasions bought “Rough on Rats”; last occasion being two months prior to the alleged murder. No part of this article so sold was produced or identified on the trial. The pharmacist, one Steely, who made the sale, testified that he had never analyzed “Rough on Rats,” and had no personal knowledge of its ingredients, but had bought and sold it in closed packages, and did not open or examine the contents of the package sold to the accused. He was then, over appellant's objection, permitted to produce and identify another package taken from his stock of goods bearing as he said a label and trade-mark like the package sold to appellant, and stated to the jury what was the antidote for “Rough on Rats” printed on said package. Dr. Vaughn was then called, and, over like objection, testified that he had made a “partial analysis” of the contents of the box produced by the witness Steely, and had found arsenic in it; after further saying that he could not estimate the proportion of arsenic, that it would be “simply guess,” and being persistently pressed by the prosecutor for a definite answer, he finally thought he was safe in placing the proportion at 50 per cent. On this evidence, and this alone, the state relied to establish the possession by plaintiff of the alleged instrument of murder, arsenic. We are strongly impressed with the conviction that the appellant's objections should have been sustained.

The name “Rough on Rats” conveys no necessary suggestion or definite information to the ordinary reader or hearer concerning its real nature or quality, save, perhaps, a somewhat far-fetched inference that it is a rat poison. The reader of the advertising columns of the newspapers may assume, as did one of the witnesses, that it is a “proprietary

[112 N.W. 637]

article”; but this phase advances us not a step toward the desired end. Indeed, it adds, if anything, to the uncertainty, for the term “proprietary” is generally, though not exclusively, applied to articles compounded or prepared according to secret or patented formulas, and placed upon the market under fanciful names, which give title or no hint of their real nature. The court cannot take judicial notice that “Rough on Rats” contains arsenic, or that the name is always and everywhere applied to the same compound, or that any two sealed packages taken from the same pharmacist's stock, and bearing such label, contain the same article; nor is there in the record the slightest evidence on which these questions could properly have been submitted to the jury. The eminent specialists employed by the state did not profess to recognize in “Rough on Rats,” an article of sufficiently definite and well-known character to enable them to say without analysis that this particular package taken at random from the pharmacist's stock contained arsenic. The state, therefore, succeeded in proving, not that the appellant purchased arsenic, or any article containing arsenic, but that some proportion of that poison was found in another package bearing a similar label and mark, taken from the same pharmacist's stock. It is argued that this break in the continuity of the state's case is bridged over by the evidence of Dr. Morse, a witness for defense, who testified on cross-examination that “Rough on Rats” is “supposed to be” a preparation of arsenic, and that Shumaker puts the proportion at 50 per cent. He does not claim to have any personal knowledge on the subject, either by way of analysis or otherwise. Conceding the eminent qualifications of the witness and of the writer whom he quotes, it remains true that the evidence as offered is that of mere supposition, based on hearsay. We may add, also, that we are wholly at a loss to know on what theory the witness Steely was permitted to recite to the jury the printed statement on the package produced by him prescribing the proper antidote for poison by “Rough on Rats.” It is not intended to hold that evidence is not admissible to show, if such be the fact, that Rough on Rats is a known and definite compound or...

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35 practice notes
  • State v. Levy, No. 52602
    • United States
    • United States State Supreme Court of Iowa
    • July 18, 1968
    ...N.W. 588; State v. Moon, 167 Iowa 26, 38--40, 148 N.W. 1001; State v. Nathoo, 152 Iowa 665, 673--674, 133 N.W. 129; State v. Blydenburg, 135 Iowa 264, 271--272, 112 N.W. 634; Jones on Evidence, Fourth Ed., section 734; 23A C.J.S. Criminal Law § 1099b, page 181; and 53 Am.Jur., Trial, sectio......
  • People v. Green, Docket No. 59674
    • United States
    • Supreme Court of Michigan
    • January 26, 1979
    ...(1907); People v. Schraeberg, 347 Ill. 392, 179 N.E. 829 (1932); Adams v. State, 202 Miss. 68, 30 So.2d 593 (1947); State v. Blydenburg, 135 Iowa 264, 112 N.W. 634 16 "The comment may be made that an attorney's misconduct is not so limited in its effect as to give rise only to question......
  • De Long v. Iowa State Highway Comm'n, No. 45356.
    • United States
    • United States State Supreme Court of Iowa
    • March 14, 1941
    ...support of their contention our recent case, Mitchell v. Montgomery Ward & Co., 226 Iowa 956, 285 N.W. 187, and State v. Blydenburg, 135 Iowa 264, 273, 112 N.W. 634, 14 Ann.Cas. 443. Neither case sustains the point. In the case first named, the sole question for determination was whethe......
  • Crouch v. Nat'l Live Stock Remedy Co., No. 38253.
    • United States
    • United States State Supreme Court of Iowa
    • January 17, 1928
    ...as those contained in the packages sold to the appellee, nor which one, if either, it resembled. In State v. Blydenburg, 135 Iowa, 264, 112 N. W. 634, 14 Ann. Cas. 443, the attempt was made to show that the defendant had bought “Rough on Rats,” [217 N.W. 563]containing arsenic. A pharmacist......
  • Request a trial to view additional results
35 cases
  • State v. Levy, No. 52602
    • United States
    • United States State Supreme Court of Iowa
    • July 18, 1968
    ...N.W. 588; State v. Moon, 167 Iowa 26, 38--40, 148 N.W. 1001; State v. Nathoo, 152 Iowa 665, 673--674, 133 N.W. 129; State v. Blydenburg, 135 Iowa 264, 271--272, 112 N.W. 634; Jones on Evidence, Fourth Ed., section 734; 23A C.J.S. Criminal Law § 1099b, page 181; and 53 Am.Jur., Trial, sectio......
  • People v. Green, Docket No. 59674
    • United States
    • Supreme Court of Michigan
    • January 26, 1979
    ...(1907); People v. Schraeberg, 347 Ill. 392, 179 N.E. 829 (1932); Adams v. State, 202 Miss. 68, 30 So.2d 593 (1947); State v. Blydenburg, 135 Iowa 264, 112 N.W. 634 16 "The comment may be made that an attorney's misconduct is not so limited in its effect as to give rise only to question......
  • De Long v. Iowa State Highway Comm'n, No. 45356.
    • United States
    • United States State Supreme Court of Iowa
    • March 14, 1941
    ...support of their contention our recent case, Mitchell v. Montgomery Ward & Co., 226 Iowa 956, 285 N.W. 187, and State v. Blydenburg, 135 Iowa 264, 273, 112 N.W. 634, 14 Ann.Cas. 443. Neither case sustains the point. In the case first named, the sole question for determination was whethe......
  • Crouch v. Nat'l Live Stock Remedy Co., No. 38253.
    • United States
    • United States State Supreme Court of Iowa
    • January 17, 1928
    ...as those contained in the packages sold to the appellee, nor which one, if either, it resembled. In State v. Blydenburg, 135 Iowa, 264, 112 N. W. 634, 14 Ann. Cas. 443, the attempt was made to show that the defendant had bought “Rough on Rats,” [217 N.W. 563]containing arsenic. A pharmacist......
  • Request a trial to view additional results

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