State v. Davis

• Decision Date: 06 February 1892
• Citation: 28 P. 1092,48 Kan. 1
• Parties: THE STATE OF KANSAS v. DAVID E. DAVIS
• Court: Kansas Supreme Court

28 P. 1092

48 Kan. 1

THE STATE OF KANSAS v. DAVID E. DAVIS

Supreme Court of Kansas

February 6, 1892

Appeal from Leavenworth District Court.

PROSECUTION for murder in the first degree. Verdict of guilty, and judgment thereon. Defendant, Davis, appeals. The opinion states the facts.

Judgment affirmed.

Thomas P. Fenlon, C. F. W. Dassler, and James W. Coburn, for appellant.

John H Atwood, county attorney, for The State; Lucien. Baker, of counsel.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was a criminal prosecution in the district court of Leavenworth county, upon information charging the defendant, David E. Davis, with committing murder in the first degree, in killing his wife, Matilda Davis, on October 9, 1890. The information charges, among other things, as follows:

"And the said David E. Davis, with a certain pillow, and a certain substance the exact character of which is to said county attorney unknown, which he, the said David E. Davis, in his hand then and there had and held, did unlawfully, feloniously, willfully, deliberately, premeditatedly, and with malice aforethought, and with the intent then and there to kill the said Matilda Davis, choke, smother, cover the mouth and nose of and stop the breathing of the said Matilda Davis for a long time, to wit, 15 minutes; and the said David E. Davis, with a certain instrument, the precise nature of which is to said county attorney unknown, did unlawfully, feloniously, willfully, deliberately, premeditatedly, and with malice aforethought, and with the intent then and there to kill the said Matilda Davis, assault, beat, strike, bruise and wound the body of the said Matilda Davis, inflicting then and there in and upon the body of the said Matilda Davis certain mortal wounds, from all of which, the choking, smothering, covering the face of and stopping the breathing of the said Matilda Davis, and the assaulting, beating, striking, bruising, and wounding, as aforesaid, and the wounds aforesaid, she, the said Matilda Davis, then and there died."

A trial was had before the court and a jury from January 26 to January 31, 1891, and the defendant was found guilty of murder in the first degree, and was sentenced accordingly on April 4, 1891; and he now appeals to this court. The principal ground upon which a reversal is asked is, that the verdict and sentence in the court below are not supported by sufficient evidence. It is claimed that the defendant not only did not have any connection with the offense charged in the information, but that no such offense was ever in fact committed by any person. It is admitted, however, that Mrs. Davis died on the night of October 8 and 9, 1890, shortly after 12 o'clock; but it is claimed by the defendant that her death resulted from natural causes, and not from any wrongful act or acts on the part of any person; and that whatever may have been the causes of her death, the defendant had no connection with them. The evidence, however, seems to have been sufficient to satisfy the court below and the jury beyond all reasonable doubt that her death was caused by the deliberate, premeditated and felonious acts of her husband, the defendant, Davis; and there certainly was some evidence from which the court below and the jury might have found such facts. The theory of the prosecution is, that the deceased died from asphyxia, suffocation, smothering, produced by the external application of something in the hands of the defendant, Davis. On the other side, the defense claims that if Mrs. Davis did die from asphyxia, which is not admitted, it was produced principally by internal disease, aggravated, possibly, by fright from fire in the room and from smoke. Taking the evidence of the physicians, and it is proved almost conclusively that she died from asphyxia, and the question then arises, how was this produced? Was it caused by the wrongful acts of the defendant, Davis, or was it caused by internal disease and fright and smoke?

We shall now pass to another ground urged for reversal and consider the two grounds together. Such other ground is that the court below, before it was sufficiently shown by the evidence or otherwise that any offense at all was committed, or, in other words, before sufficient evidence was introduced to prove the corpus delicti, erroneously permitted the prosecution to introduce evidence tending to show that the defendant may have been guilty of the supposed offense; that he entertained hostile feelings toward the deceased; that he had previously used personal violence toward her, and made threats of killing her, and that he had strong personal and pecuniary motives for desiring and causing her death. We do not think that any such error was committed; for although the court permitted evidence to be introduced as is claimed, yet all the evidence of the defendant's supposed guilt was introduced along with the other evidence for the purpose not only of showing that he was in fact guilty, but also of showing that the offense was really and in fact committed by some person, or, in other words, of proving the corpus delicti. In a case like this, it would be almost if not utterly impossible to prove the corpus delicti without at the same time or previously introducing evidence tending to show that it was the defendant who was the principal if not the sole actor in committing the offense. Under the circumstances of this case, it was absolutely necessary either to prove both the corpus delicti and the defendant's connection with the offense at the same time, or else to utterly abandon all proof, for one could not at all be proved without proving the other. Was the corpus delicti proved? Or, as the question is presented to this court, was there sufficient evidence introduced to sustain the decision of the court below and the jury that it was proved?

As before stated, we think it was shown beyond all question that Mrs. Davis died from asphyxia. Then, was this asphyxia brought about by the acts of the defendant, Davis, in suffocating or smothering her, or did it originate from internal disease, and from fright and smoke, as contended by the defendant? Mrs. Davis, up to the time when she went to bed, about 10 o'clock in the evening of October 8, 1890, was in apparently good health. She was over 70 years old, however, and from the post mortem examination it was found that she had a diseased kidney. Her other kidney and lungs were also slightly diseased, and she also had bruises about her arms and face. When she was first found after her death she was lying on her back, her hands thrown back and open and palms upward, and she was limber, and her lower jaw dropped down. Her bedroom was on the first floor of the house, and connected by an open door with the sitting-room, and one of the sitting-room windows was open to the outside of the house. The defendant Davis's bedroom was upstairs. The next morning it was found that there were tracks of some person on the ground outside of the house going up to that window, into which tracks Davis's shoe fitted exactly. Harry Crook, a grandson of the deceased, about 15 years old, slept in the same room with the deceased, on a feather tick on the floor. Before going to bed he had been reading, but on retiring he put the lamp on the bureau, extinguished the light, and went to bed and to sleep. Some time during the night he heard, or dreamed he heard, his grandmother calling to him, "Harry, Harry! help, help!" Afterward, he also heard, or dreamed he heard, some one going upstairs, and then some one walking over the sitting-room floor, and the boards creaking. Davis's room was over the sitting-room, and he was the only person who slept upstairs. Afterward, Harry Crook became completely aroused from his slumbers, and got up and called Charles Morton and his wife, who slept in a back room of the house on the first floor. At this time there was a small fire on the floor near the middle of Mrs. Davis's sleeping room, which fire, before it was extinguished, increased in extent. The lamp, also, which had been left on the bureau, was down on the floor, and the bowl broken, the burner "unscrewed" from the bowl, and the chimney not broken. When Morton first came into the deceased's room he called, "Grandma, grandma!" but she made no answer, and he found that she was dead. She was lying on her back, her hands thrown back, palms up and open. About that time the defendant, Davis, came down-stairs in his night-gown and socks. No one at that time, except Morton and the murderer, if a murder was committed, knew that Mrs. Davis was dead, yet, nevertheless, according to Morton's testimony, Davis, when he got to the sitting-room door and in the hall, exclaimed, "My wife is dead!" and pretended to cry, but did not; and shortly afterward Davis inquired where Mrs. Davis kept her money, and he looked into a bureau drawer and found a tin box and looked into it.

At some time prior to the commencement of the divorce suit, and while Davis and his wife were living together, she executed a will in his favor, but when she commenced the divorce suit she destroyed the will. Also, at the time when Harry Crook went to bed the little dog was in the sitting-room, and the door leading from this room into the hall was so locked that it could be opened from the inside, but not from the hall. After the alarm, and when this door was opened, the little dog was found in the hall, and not in Mrs. Davis's bedroom, nor in the sitting-room. And this dog was in the habit of...