State v. Holden.

• Decision Date: 28 April 1941
• Docket Number: No. 4551.,4551.
• Citation: 45 N.M. 147,113 P.2d 171
• Parties: STATEv.HOLDEN.
• Court: New Mexico Supreme Court

45 N.M. 147

113 P.2d 171

STATE

v.HOLDEN.

No. 4551.

Supreme Court of New Mexico.

April 28, 1941.

Appeal from District Court, Chaves County; James B. McGhee, Judge.

Carl Holden was convicted of mingling poison with food with intent to injure and kill a certain individual, and he appeals.

Judgment affirmed.

In a criminal prosecution, the trial court is allowed a broad discretion in controlling the extent of the cross-examination of a witness concerning specific acts of misconduct or wrongdoing in order to impeach his character and to affect his credibility.

E. E. Young, of Roswell, for appellant.

Filo M. Sedillo, Atty. Gen., and Fred J. Federici, Asst. Atty. Gen., for appellees.

SADLER, Justice.

The defendant by information was charged with mingling poison, to-wit, arsenic, with food with intent to injure and kill one Ernest Langenegger, contrary to the provisions of 1929 Comp., § 35-603. The jury returned a verdict of guilty at the conclusion of the trial and the court imposed on defendant the mandatory sentence of life imprisonment from which he appeals.

The evidence connecting defendant with the crime is entirely circumstantial and his principal assignment of error is that the verdict is without substantial support in the evidence. The fact that Ernest Langenegger as well as other members of his family suffered intermittently from arsenate of lead poisoning over a period of approximately three months is not questioned. Indeed, it was stipulated at the trial that competent physicians found them suffering from repeated doses of the poison mentioned. The challenge against the verdict, then, is not that proof of the corpus delicti is wanting, but rather that the circumstances relied upon to connect defendant with commission of the offense lack the probative force required in criminal prosecutions.

The following facts given in evidence either are undisputed or within the verdict as permissible inferences. The prosecuting witness was an irrigation farmer living in the vicinity of Hagerman in Chaves County, New Mexico. His family consisted of himself, his wife to whom he was married in 1929, following the death of his first wife, and also four sons by the first marriage, all residing together in the farm home at the time of the events to be related. In addition, there were two daughters by the former marriage who were no longer residing with their father. The father, the prosecuting witness, at the time in question, operated two farms, one surrounding the house occupied by the family as a home, and another located some four or five miles distant therefrom, northwest of the town of Hagerman.

The defendant had worked for Langenegger as a farm laborer at different times beginning eight years prior to the trial. In the month of January, 1937, however, he began working steadily for him and continued in his employ until early September of said year, living at a small cabin on the upper place but alternating his work between the two farms.

From time to time between June 15 and September 2, 1937, Ernest Langenegger, the prosecuting witness, and other members of his family became violently ill from eating food prepared in the Langenegger home, particularly biscuits, pastries or other foods in which flour was an ingredient. Symptomatic of the illness suffered by them were thirstiness, cramps, nausea and vomiting. Such symptoms usually accompany arsenic poisoning. Specimens of flour taken from the flour bin in the Langenegger home, from which bread and pies were baked, showed the presence of arsenic in sufficient quantities to have caused the symptoms displayed by members of the family.

After becoming suspicious of the flour, the bin was emptied into the back yard. The following morning between fifty and sixty sparrows and some chickens lay dead in the barn yard from eating the flour. For a time after emptying the flour bin the family bought pastries and bread and during this period the illnesses ceased. But, upon making a new purchase of flour and using it from the bin for making pastries and bread consumed by the family, members of the family began to display the same symptoms enumerated above. Shortly after the purchase of the new flour, Mrs. Ernest Langenegger, wife of the prosecuting witness, heard noises in the kitchen about the cabinet around midnight. The next morning upon being interrogated by Mrs. Langenegger regarding the matter, the defendant, who was irrigating on the night shift, admitted he was the one in the kitchen that night and explained his presence by saying he was making some tea.

Again, the defendant was discovered in the house around midnight by Ernest Langenegger. Upon being questioned as to his purpose there, he offered a fanciful story of having just shot a man who was one of a group of three seemingly engaged in tampering with the irrigation pumps and stated that he had come to the house to get Langenegger's son, Bill, to come out and check the engines to ascertain if any damage had been done them by the culprits. He stated that the man he shot stumbled and fell, was picked up by his companions, placed in a car and that all three escaped. Investigation disclosed that the story was fabricated.

Jim Langenegger, a son of Ernest, was the first to get sick. The date was about June 15, 1937. He had breakfast at home that morning and lunch on the upper farm nearly five miles away. Jim consumed something that day that no other member of the family did. It was a cold drink known as Cool-ade which had been prepared by the defendant. The defendant himself drank Cool-ade with this son, apparently from the same making, though it was not out of reason that something might have been placed in the glass given Jim, not contained in his own. Jim became sick and displayed the same symptoms later shown by other members of the family. The defendant did not get sick from drinking the Cool-ade.

Other dates on which all or some members of the family became sick after eating were June 30th, about July 5th and around September 2nd, 1937. On June 30th, after eating breakfast at home, the entire family, except the son, Bill, got sick. He had eaten no biscuits for breakfast.

On July 4th, ice cream was made at the Langenegger home by Mrs. Langenegger and the defendant. Present also were Willis Jacobs, Jim Langenegger and Orville McCullough. The last three named ate some of the ice cream and two of them, Jacobs and McCullough, also ate some vanilla cake which had been baked by Mrs. Langenegger. Both got sick after eating the cake and vomited. The defendant ate none of the cake although he took some of it home with him. On another occasion and prior to members of the family becoming sick on June 30th, Mrs. Langenegger had baked three peach pies and a cake. This is the date on which the entire family except Bill, who ate no biscuits that morning, became sick after eating breakfast at which biscuits had been served. Ernest and his son, Jack, ate some of the pie for dinner at noon and Jim and Jack some for supper and became very sick. Bill who had said he thought the peaches in the pie were spoiled and refused to eat any did not get sick. The defendant, who was present in the Langenegger home, stated he didn't think there was anything wrong with the pie. He was asked to eat some of it but refused, simply saying he didn't want it but that he would take some of it home with him which he did. He ate none of it while at the Langenegger home.

Soon after defendant began working steadily for Ernest Langenegger, one Jim Hampton was employed to assist in the irrigation of crops. After some heated words one day between defendant and Hampton, the former was heard to remark that if Hampton ever returned to his place he would “hurt” him. When later Hampton did return and ate his lunch to which defendant had access while Hampton was at work in the field, he got sick and suffered the same symptoms that other members of the Langenegger family had previously and later displayed.

On July 5th, Ross and Jim Langenegger got sick at the upper place after eating their lunch consisting of bread and canned goods which previously had been taken there from the home place and some milk taken up that morning. It was customary for them to place the milk in a container under the pump in order that it would be cool when they returned from their work in the field. It was so placed on this occasion. The pump was near defendant's cabin and although on the night shift and sleeping in the daytime he was often “seen up” at various times and had access to the food and milk.

When Jim got sick defendant said nothing at first. Then he suggested that Jim was poisoned and that he be taken to a doctor. When Ross got sick the defendant kept telling him that somebody was poisoning him and suggested the name of a neighbor as one who might be doing it on account of his having had to file a suit against Ernest Langenegger to get a well drilling permit, as stated by defendant. On one occasion defendant told Ross Langenegger he had read in a detective magazine that arsenic could poison a whole family-cripple them-and asked Ross if he thought that could be the trouble.

One day during this period Jack and his father, Ernest Langenegger, got sick at the upper place. Ernest got sick out in the field. He lay down in the field and vomited and then Jim came along and helped him to the house. He and his son Jack lay down on a cot together and defendant brought them two glasses of lemonade. The son, Jack, declined to drink his stating, “Daddy, there is something the matter with this lemonade”. The father tasted his and said he was going to drink it. He did and in about two hours he “got lots sicker again”.

After drinking the lemonade Ernest Langenegger went out by the pump house to bathe his face and feet in cold water. He was violently ill. He lay there for a couple of hours. Presently he turned over and Carl Holden, (the defendant), was standing back of him....