State v. Flory
| Decision Date | 24 June 1924 |
| Docket Number | 35864 |
| Citation | 199 N.W. 303,198 Iowa 75 |
| Parties | STATE OF IOWA, Appellee, v. LAWRENCE O. FLORY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Keokuk District Court.--D. W. HAMILTON, Judge.
THE defendant was convicted in the court below of the crime of murder in the first degree, and sentenced to imprisonment in the penitentiary at Fort Madison for life; and he appeals.
Reversed.
Stockman & Baker, J. A. Devitt, and F. M. Beatty, for appellant.
Ben J Gibson, Attorney-general, and J. H. Wyllie, for appellee.
STEVENS J. ARTHUR, C. J., DE GRAFF and VERMILION, JJ., concur.
I.
The indictment, in two counts, charged the appellant with the murder of Alvina Flory, his wife, by poisoning. The evidence relied upon for conviction was quite largely circumstantial. Deceased became violently ill on February 2, 1922, and was attended by Dr. Wall, the family physician. She again became ill on the 20th and 27th of the same month, and on March 9th. On each of said dates she was visited by her physician. Her death occurred in the evening, some time before 11 o'clock, on the last mentioned date. Dr. Wall was called after Mrs. Flory was discovered dead in her bed, and examined the body.
Upon his first visit, Dr. Wall found deceased suffering from severe pains in the stomach and bowels. He visited her again the following day, when he diagnosed her ailment as gastric ulcers, and prescribed what is known as the "Sippy treatment." This treatment consisted of the administration of medicine in the form of powders,--the powders to be taken in alternate doses, with milk and cream in equal proportion. One dose was composed of sodium bicarbonate and magnesia oxide, and the other of sodium bicarbonate and calcium carbonate. The powders were white in color. At first, the powders were made up by the physician; but later, they were supplied in two separate bottles, and the does were measured by appellant, and frequently administered to the deceased by him. This treatment was continued until her death. The doctor was called about midnight on February 20th, and, upon his arrival, found deceased suffering "great distress, and was apprehensive of some calamity." She cried a great deal, and "a convulsive condition developed." The patient was quieted by hypodermic injections of morphine. Her condition on March 9th, when Dr. Wall called about 3 P. M., appeared to be much improved. Her stomach was better, and her heart and lungs were normal. A death certificate made out by Dr. Wall and forwarded to the state department of vital statistics gave the cause of death as acute myocarditis.
The body was exhumed on April 13th, and, in the presence of Dr. Wall, Dr. Heald, of Sigourney, and Harrison Shaver, the sheriff of Keokuk County, and two undertakers, the vital organs were removed, placed in four glass jars, which were sealed, and the whole delivered by the sheriff to Dean Teeters, of the College of Pharmacy at Iowa City, for examination. The examination made by Dean Teeters disclosed the presence in the stomach and bowels of more than sixty grains of bichloride of mercury. The condition of these organs quite conclusively indicated that death resulted from the effects of the bichloride of mercury. All of the other vital organs were in a healthy condition.
The State claims that the poison was administered to deceased by appellant; and evidence was introduced to prove that, on January 22, 1922, he purchased an ounce of bichloride of mercury of Nathan Whiting, a druggist at Iowa City, giving as a reason for the purchase that he desired to use it to kill dogs. The poison register which showed the above sale was signed "Chas. Jones, Wellman." Whiting identified appellant as the purchaser of the poison, and a handwriting expert gave it as his opinion that the handwriting on the register was that of appellant.
Bottles containing some of the fluid used in embalming the body of deceased were also chemically analyzed by Dean Teeters, and found to contain bichloride of mercury. He testified that the quantity of bichloride of mercury in the fluid used by the undertaker in embalming the body did not, however, substantially exceed twenty-five grains.
Appellant, as a witness in his own behalf, denied that he purchased the bichloride of mercury of Whiting at Iowa City, or that he administered poison to his wife. The claim is made by appellant that the evidence was insufficient to convict; but we shall not review the record on this point, as we deem the contention without substantial merit.
II. Counsel for appellant sought to cross-examine Dr. Wall, who was called as a witness for the State, as to the cause of death, and to introduce in evidence a certified copy of the death certificate made out and forwarded by him to the registrar of vital statistics, as a part of the cross-examination, but was not permitted to do so. Later, the certified copy of the death certificate was offered in evidence, as a part of appellant's case in chief; but the court again excluded it,--this time upon the objection of the county attorney that it was incompetent. The first ruling was clearly correct, but the latter ruling cannot be sustained.
Dr. Wall was not examined in chief as to the cause of death, and hence this could not be made the subject of cross-examination.
Chapter 222, Acts of the Thirty-ninth General Assembly, provides for a department of vital statistics, and makes the secretary of the state board of health the registrar of such department. The act makes it the duty of physicians to prepare and forward to the registrar certificates of births and deaths, and to use a form prepared and furnished by that department. Section 21 of this act provides that:
"Any such copy of the record of a birth or death when properly certified by the state registrar, shall be prima-facie evidence in all courts and places of the facts therein stated."
It is argued by counsel for the State that the certified copy of the certificate in question was inadmissible for the following reasons: (a) That it violates the rule protecting privileged communications; (b) that it is not a public document, nor a copy thereof; (c) that no evidence was offered to prove that the officer signing the same was the registrar or assistant registrar of the department of vital statistics; and (d) that the certificate is not properly authenticated. Statutes authorizing the introduction in evidence of certified copies of public records have been uniformly upheld by the courts, and the only question here is whether the certified copy offered was properly authenticated. The rule which protects privileged communications has no application to public records. The requirements of the law that a public record be kept could not be complied with if the privilege were extended thereto, and statutes authorizing the introduction of certified copies thereof in evidence would be a nullity. Upon this question, see Bozicevich v. Kenilworth Merc. Co., 58 Utah 458 (17 A. L. R. 346, 199 P. 406, and note appended thereto); 5 Wigmore on Evidence (2d Ed.), Section 2385-a.
Section 4643 of the Code of 1897 provides as follows:
"In the cases contemplated in the last ten sections, the signature of the officer shall be presumed to be genuine until the contrary is shown."
It is true that the certificate in question is signed by the assistant registrar, the signature of the registrar being affixed thereto by the use of a rubber stamp. The document bears the impression of the seal of the department of vital statistics. Section 2 of Chapter 222 authorizes the registrar to appoint assistants. It is a general rule that the signature attached to a document bearing an impression purporting to be an official seal is presumed to be genuine. 3 Wigmore on Evidence (2d Ed.), Section 1679. The exhibit was properly authenticated, and clearly admissible in evidence.
It is also urged by the State that the exclusion of this...
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