State v. Flory
| Decision Date | 23 November 1926 |
| Docket Number | 37576 |
| Citation | 210 N.W. 961,203 Iowa 918 |
| Parties | STATE OF IOWA, Appellee, v. LAWRENCE O. FLORY, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED APRIL 7, 1927.
Appeal from Poweshiek District Court.--CHARLES A. DEWEY, Judge.
The defendant was indicted for murder in the first degree, the accusation being that he killed his wife by the administration of poison. There was a verdict of guilty, and from a judgment thereon of imprisonment for life he appeals.
Affirmed.
Stockman & Baker, J. A. Devitt, F. M. Beatty, and Frank Bechly, for appellant.
Ben J Gibson, Attorney-general, and Neill Garrett, Assistant Attorney-general, for appellee.
The case has been before this court on a prior appeal. State v. Flory, 198 Iowa 75, 199 N.W. 303. Upon the second trial, substantially the same essential facts were shown, and the defendant was again convicted. It is unnecessary to repeat at length the statement of facts found in the former opinion.
The certificate of death made by the attending physician, the exclusion of which was a ground of reversal on the former appeal, was admitted in evidence on the second trial. The certificate gave the cause of death as "acute myocarditis, contributory (secondary) aortic insufficiency."
I. The death of the deceased occurred on March 9, 1922. The appellant complains that he was not permitted to show that, in 1914, the deceased was suffering from uremic poisoning, due to the condition of her kidneys, and had convulsions which affected her heart; that, in 1915 also, she had uremic poisoning, due to the diseased condition of her kidneys; that, in 1917, several tests of the urine indicated a diseased conditions of the kidneys. The same testimony was offered on the former trial, and its exclusion was urged as a ground of reversal on appeal. It was not particularly referred to in the former opinion, but had the careful consideration of the court, and was not deemed cause for reversal. But it is now urged that, in connection with the death certificate, the testimony became material and competent. There was no offer to prove that the conditions sought to be shown in 1914 to 1917 continued down to or existed at the time of death, or that they had any connection of cause and effect with the cause of death shown in the death certificate. We think that no prejudicial error appears here. Redfield v. Redfield, 75 Iowa 435, 39 N.W. 688.
II. It was the claim of the State that the deceased died from bichloride of mercury poisoning. A considerable quantity of that poison was found in the body, on a post-mortem examination. Bichloride of mercury was contained in the embalming fluid injected into the body, but there was testimony that the total amount in the embalming fluid was less than half that found in the body. The defendant was denied the right to show, on cross-examination of the witness who made the chemical analysis of the embalming fluid, certain conditions claimed to have been found by him on a visit to the place where the fluid was compounded and put up, indicating that the amount of bichloride of mercury in the fluid there made was not constant. The witness had testified on this point, on direct examination, to an examination of a part of a bottle of the fluid which the undertaker testified was what was left in the bottle from which that injected into the body of deceased had been taken. There was no contradiction of the testimony of the undertaker. Clearly, the matter inquired about was not cross-examination, and it was also immaterial. The ultimate material fact in this connection was the amount of bichloride of mercury in the fluid injected into the body. When this was shown by the analysis of the remainder of the contents of the bottle from which it was taken, the amount that might be put in other fluid of the same name or manufacture was wholly immaterial.
III. Other complaints are made of the exclusion of testimony offered by the defendant. The same rulings were made on the former trial and approved on the appeal. They require no further consideration.
IV. Complaint is made of the refusal of the court to give a requested instruction to the effect that, if defendant and his wife had some differences, and thereafter they were settled and adjusted, and the parties lived together as husband and wife, under the usual and ordinary circumstances, the former differences could not be taken into consideration as tending to prove a motive for the crime. There was evidence that at one time the appellant left the deceased, taking a part of the household goods, and that this was against her wishes; that he had sought advice about securing a divorce, and had been told that he had no sufficient grounds; that, a few weeks before the death of his wife, the defendant frequently had sexual intercourse with a young woman who was employed in the home; and that appellant and the deceased quarreled about his conduct with this girl. There was no direct evidence of a reconciliation of past differences. The most that appears is that at times their relations appeared to be pleasant; that they were living together prior to, and at the time of, the wife's death; and that they had quarreled shortly before. The facts do not bring the case within the rule announced in State v. Hossack, 116 Iowa 194, 89 N.W. 1077.
Moreover, the holding in that case was that, where there was a good-faith reconciliation of past differences between husband and wife, one of whom was accused of killing the other, lived up to by the parties down to the time of the death of the deceased, in which former animosities were forgiven and forgotten, the previous troubles could not be considered as affording a motive for the crime. The requested instruction, however, attached the same effect to a settlement and adjustment of prior differences--which is by no means necessarily the same thing as reconciliation and forgiveness--and to the fact that the parties thereafter lived together under the usual conditions of living. There was no error in refusing the instruction.
V. There was testimony tending to show that the appellant, some five or six weeks before the death of his wife, purchased an ounce of bichloride of mercury of a druggist in Iowa City; that he said he wanted it to kill dogs, and signed an assumed or fictitious name on the poison register, and gave a false address. The appellant asked an instruction to the effect that, in order to convict, the jury must find beyond a reasonable doubt that the defendant purchased bichloride of mercury of the druggist named, at Iowa City, on the date claimed.
Under the evidence, we think that the purchase by appellant of bichloride of mercury, as claimed by the State, was but a circumstance, although manifestly a very strong one, tending to show guilt. There was testimony that, for some weeks prior to her death, the deceased had been taking, under the direction of a physician, certain powders that in form and color resembled bichloride of mercury in powdered form; that these powders were supplied by the doctor in bulk, and a supply had been so given to the defendant on the day of the night decedent died; that, on an occasion when appellant prepared the medicine for his wife, she asked him what he put in it that made it taste so bitter, and said it burned her throat so she could not spit it up or swallow it, but that it was easier to swallow it, and within fifteen minutes she was sick; that he replied, "Vina, what do you accuse me of that for, because you know I am innocent," and later said it might have been because he left the spoon in the medicine. There was testimony that bichloride of mercury has a "metallic, acrid taste, very disagreeable, bitey, burning, and cutting." There was testimony of the finding of over thirty grains of bichloride of mercury in the body more than could be accounted for by the embalming, and that that found in the contents of the stomach was placed there not over 24 hours before death, and probably less.
In State v. Blydenburg, 135 Iowa 264, 112 N.W. 634, relied upon by appellant, where the defendant was accused of the commission of murder by the administration of arsenic, it was said that:
It was held in that case that testimony that the defendant had purchased "Rough on Rats" did not, in the absence of evidence that the article purchased contained arsenic, establish his possession of that poison. The question there arose on the sufficiency of the evidence to sustain the conviction. In the state of the record here, it was for the jury, not for the court, to say whether a finding that appellant purchased bichloride of mercury in Iowa City, and on the particular date claimed by the State, was necessary, in order to convict. The court instructed, in substance, that, if the jury had a reasonable doubt as to the sufficiency of the evidence to prove each circumstance necessary to reach a conclusion of guilt, a verdict of not guilty should be returned. There was no error in refusing the instruction asked.
VI. There was no error in refusing an instruction on the subject of the identification by the druggist in Iowa City of the appellant as the purchaser of bichloride of mercury, that said that evidence relating to the identification of persons is "exceedingly fallible."
VII. The court gave an instruction relating to the death certificate, saying, in substance, that the law made the certificate presumptive evidence of the facts therein stated but that the presumption was rebuttable. The instruction is not open...
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