State v. Fulkerson

• Decision Date: 11 January 1960
• Docket Number: No. 2,No. 47275,47275,2
• Citation: 331 S.W.2d 565
• Parties: STATE of Missouri, Respondent, v. Hubert FULKERSON, Appellant
• Court: Missouri Supreme Court

Page 565

331 S.W.2d 565

STATE of Missouri, Respondent, v. Hubert FULKERSON, Appellant.

No. 47275.

Supreme Court of Missouri, Division No. 2.

Jan. 11, 1960.

Motion for Rehearing or to Transfer to Court en Banc Denied

Feb. 8, 1960.

A. Camp Bonds, Muskogee, Okl., John W. Newhart, Savannah, for appellant.

John M. Dalton, Atty. Gen., W. H. Bates, Sp. Asst. Atty. Gen., for respondent.

STOCKARD, Commissioner.

In this circumstantial evidence case Hubert Fulkerson (hereafter referred to as defendant) was found guilty of administering arsenic poison to Mrs. Luella Matthews with the intent to kill or injure her (see Section 559.150 RSMo 1949, V.A.M.S., as amended, Laws of Missouri 1955, p. 504), and sentenced to confinement in the penitentiary for a term of seven years. He has appealed from the judgment entered in conformity with the jury verdict.

Defendant was a student at Park College, Parkville, Missouri, where he worked part time in the college Health Center under the direction and supervision of Mrs. Matthews. Although defendant usually worked at the Health Center on afternoons, he reported for work about 7:30 o'clock on the morning of May 9, 1957. He swept and waxed floors until shortly before 9:00 o'clock when he left to go to the second floor of the science building for a 9:10 o'clock appointment with his faculty counselor. Defendant stated that his meeting with his counselor lasted about twenty minutes and that he then went back to his room in the dormitory. At 11:00 o'clock he returned to the Health Center and finished cleaning and waxing floors. He then raked leaves around the south end of the building. Although her reason for doing so does not appear in the record, Mrs. Matthews searched defendant's suede jacket, which was hanging in a closet in the kitchen, and she found in one of the pockets a glass bottle containing a reddish powder and labeled arsenic sulphide, but which was later determined to be arsenic pentasulphide. Mrs. Matthews immediately notified Mr. Alexander Patience, the acting dean of men, who took a sample of the contents of the bottle and then replaced the bottle in defendant's jacket.

Miss Shirley Flint (Mrs. Jury at time of trial), a student who worked as a cook at the Health Center, arrived at about 11:05 o'clock to prepare the noon meal which consisted of a ham and potato cake, fruit salad, milk and bran muffins. In the preparation of the muffins she placed the bran, milk, eggs and shortening in a bowl and started to mix them by use of an electric mixer. While they were being mixed, Miss Flint was working at a nearby table and defendant 'came up behind' her and she bumped into him when she turned around. She did not know how long he had been there. The implication is that when defendant was behind Miss Flint he was next to the electric mixer. Afterward, when Miss Flint took the mixing bowl to add the flour, baking powder and 'other ingredients' she 'noticed that there was a little bit of some white substance around the edge where it hadn't been completely mixed.' However, she went ahead and prepared the muffins. Miss Flint and defendant were the only ones nearby while the muffins were being mixed. After the muffins were baked, defendant entered the kitchen again and took one of the muffins and buttered it. According to defendant he ate the muffin, but Miss Flint only saw him take one bite, and she could not say whether or not he ate it. About noon Mrs. Matthews, Miss Flint and Mrs. Markley ate lunch, and the food was also served to a student named John Porter who was a patient in the Health Center. All except Mrs. Markley, who was on a diet, ate one or more of the muffins, and all except Mrs. Markley shortly thereafter became violently ill with pronounced symptoms of arsenic poisoning. Medical aid was obtained and emergency treatment was administered. Dr. H. C. Thurman, the treating physician, stated that Mrs. Matthews was 'quite ill.'

Part of a muffin was analyzed chemically and arsenic was found to be present. An analysis of specimens of vomit and urine of Mrs. Matthews disclosed the presence of arsenic. Dr. Thurman stated that the amount of arsenic estimated by the chemists to be in a muffin would be extremely poisonous. The other food served at the lunch was tested but no evidence of arsenic was there found.

Defendant had left the Health Center before the muffins were eaten, and for some reason not disclosed by the record, Dean Patience had arranged for a student by the name of Kenneth Grady to 'surveil or follow' him. Grady first 'picked up' the defendant on this surveillance about noon of May 9 when he left the Health Center. He was then carrying his jacket, and he went to the 'Commons' and ate lunch in the student dining room. According to Marylin Johnston, a student who also worked at the Health Center of afternoons, she and defendant met on the campus about noon while he was walking from the direction of the Health Center toward the 'Commons.' They exchanged greetings and in the conversation defendant asked her 'twice and perhaps three times' if she intended to eat lunch at the Health Center. Defendant admitted he was acquainted with Marylin Johnston but denied this encounter, and Kenneth Grady who was then following defendant was not asked about it.

According to defendant, before he finished his lunch at the 'Commons' he became ill and went to the rest-room and vomited, but Grady did not see him do this. Grady stated that after lunch defendant went to the 'J. R.,' the student union portion of the 'Commons,' and after 'roaming around' he left the building. He then made a short visit to the administration building (defendant said he was checking his mail box), and then went to Copely Hall, the dormitory where he lived. Defendant testified that as he neared Copely Hall 'I stuck my hand in my pocket and I found a vile, a clear glass bottle about five inches long with a black cap and labeled arsenic pentasulphide [it was actually labeled arsenic sulphide but contained arsenic pentasulphide] * * * but I have no idea about where it came from. * * * To the best of my knowledge it wasn't there [Health Center] at all * * * [but] could have been.' He knew that if a student 'removed something from the chemistry lab you flunked-failed,' and 'I tried to think where it come from and what to do with it and I couldn't, so I decided it would be best if I didn't have it and I stepped to the nearest window sill and left it there.' Kenneth Grady saw the defendant place the bottle on the window sill. It was later recovered by Dean Patience and was introduced in evidence as an exhibit.

Defendant testified that after he entered Copely Hall he became ill on the way to his room and he stopped in the rest-room, but he indicated that his surveillance was not such that this could not have happened without him seeing it. Defendant went to his room and studied with some other students and later went to sleep. He testified that about four o'clock he became ill again, and that when he vomited this time he 'filled the sink plumb full to the top' and then went to a second sink 'and got it half full,' and that in the vomit there was 'something red, which I assumed to be blood.' His roommate, Robert Pulkka, testified that he saw defendant vomiting and he was 'very sick.' A few minutes later Dean Patience and Mr. William M. Stanton, the business manager of the college, arrived at defendant's room and took him to the Neurological Hospital in Kansas City. Dean Patience testified that when he conferred with defendant in his room he said nothing about being ill, but that Robin Firth, a student with whom defendant had been studying earlier, told him that defendant had been ill. Defendant testified that he went to the hospital willingly because he was very sick, and that on the way to the hospital he became ill and continuously gagged and tried to vomit, and that Dean Patience accused him of 'faking.' Dean Patience and Mr. Stanton testified that defendant did not become sick on the way to the hospital, but that he told them that he had been sick and that he had vomited.

At the Neurological Hospital defendant was received by Dr. Rita Wetzel, a psychologist, to whom Dean Patience and Mr. Stanton related the circumstances of what had occurred at the college including what the defendant had told them about being sick. While defendant was at the hospital a towel in which he had vomited was sent to the Kansas City Testing Laboratory, and an analysis revealed a 'positive test for arsenic.' On May 11, at the hospital, defendant was questioned by the prosecuting attorney in the presence of his parents, and he denied that on May 9 he had had any arsenic in his possession. The only medical treatment defendant received while at the hospital, as revealed by its records, was the administration of a mild sedative and a medication by capsule which, according to Dr. Graham Parker, a privately practicing physician, was 'most commonly used in such conditions as epilepsy or seizures or fits so to speak.' Neither of these medications was a drug to be given to one suffering with arsenic poisoning. On May 12, a Sunday, the sheriff arrested defendant and took him from the hospital to jail. Dr. Wetzel indicated that she thought there was an agreement between defendant's parents, the hospital and the prosecuting officials to leave defendant there for a complete physical and psychiatric checkup, but she knew of no physical or mental reason why he should not have been released when the sheriff arrested him. Dr. Parker stated that in his opinion any person who had received enough arsenic to produce a bloody vomit would still be ill on the third day thereafter.

On the afternoon of May 12, while being questioned by the prosecuting attorney concerning his activities, defendant mentioned that there was another bottle of arsenic besides the one he placed on the window sill, and that there were two bottles missing from the college...