State v. Smoak

• Decision Date: 02 February 1938
• Docket Number: 578.
• Parties: STATE v. SMOAK.
• Court: North Carolina Supreme Court

195 S.E. 72

213 N.C. 79

STATE v. SMOAK.

No. 578.

Supreme Court of North Carolina

February 2, 1938

Appeal from Superior Court, New Hanover County; J. H. Clement Judge.

E. L Smoak was convicted of murder, and he appeals.

No error.

The testimony of a character witness must be confined to the general "reputation" of the person whose character is attacked. "Reputation" being the general opinion, good or bad, held of a person by those of a community in which he resides.

The defendant was indicted on the following bill of indictment:

"North Carolina, New Hanover County.

Superior Court, January Term, 1937.

The Jurors for the State upon their oath do present, that E. L Smoak, late of New Hanover County, on the 1st day of Dec., A. D., 1936, with force and arms, at and in the said County, feloniously, willfully, and of his malice aforethought, did kill and murder Annie Thelma Smoak, contrary to the form of the statute, in such case made and provided, and against the peace and dignity of the State.

[Signed] Burney, Solicitor."

A true bill was found by the grand jury, and the defendant was put on trial. "On motion of counsel for the defendant, the jury was polled, and each juror, for himself, doth say that the defendant is guilty of murder in the first degree." Upon the verdict, the court below imposed upon the defendant the sentence of death.

The state relied on evidence to the effect that the defendant killed his daughter, Annie Thelma Smoak, about 16 years of age, by administering strychnine. She died on December 1, 1936. Shortly prior to this, on Thanksgiving Day, November 26, 1936, she was taken to a hospital and the physicians treated her there for strychnine poisoning.

Jack Penny testified that he was employed by the Brooklyn Pharmacy on November 19, 1936, and about 5 o'clock in the afternoon the defendant purchased from him a small bottle of strychnine-an eighth of an ounce. The defendant stated that he wanted the strychnine for hogs. Jack Penny recorded the sale, name, address, and purpose. At that time defendant had no hogs. Later he said it was to kill cats and dogs or whatever was eating his chickens and biddies. The evidence tended to show that at different periods defendant bought strychnine.

(1) Defendant had taken out insurance on the life of his daughter, Annie Thelma Smoak: (a) $445 on April 1, 1935, in the Metropolitan Life Insurance Company, payable to her closest relative; (b) $445 on March 16, 1936, in the American National Insurance Company, with defendant as beneficiary. A premium was paid on November 25, 1936, through the week of December 14th-two weeks farther in advance than he paid any other policy which he held with that company; (c) $100 in the Andrews Mutual Burial Association, which was taken out on October 28, 1936.

W. G. Stewart testified "her head was drawn backward, the hands seemed to be clinched in a very tight position and it was necessary to break up the rigor mortis to straighten them-the feet were extended, the toes being forward." It was also in evidence that Annie Thelma Smoak and Alice Mason Smoak both died with violent convulsions.

(2) Policy in the Metropolitan Life Insurance Company, on the life of Alice Mason Smoak, his second wife, for $565. The policy was dated December 25, 1932. Also policy in the Life Insurance Company of Virginia for $250. Defendant filed proof of death and was paid-her death occurred July 8, 1935. She married defendant on October 7, 1922.

(3) Policy carried in Life Insurance Company of Virginia and Metropolitan Life Insurance Company, on the life of Georgia Jones Smoak, his first wife, for about $500. This was paid defendant. She died in 1922 in a manner similar to that of Annie Thelma Smoak.

(4) He took out a policy of insurance in the American National Life Insurance Company, on the life of Mrs. Bertha Stewart, mother of Mrs. Jeannette Harker, about November 11, 1935, in which he was named as beneficiary, and represented in the policy that his relationship to her was that of cousin. Her physician said that she came near dying from strychnine poisoning, which defendant had given her and which he said was "indigestion powders." It was also in evidence that defendant had taken out insurance on the life of Mrs. Jeannette Harker and his two sons.

The first wife of defendant was Georgia Jones Smoak, mother of Annie Thelma Smoak. After her death (nine months thereafter) he married Alice Mason Smoak, who died on July 8, 1935. Before and after her death, he paid attention to Mrs. Jeannette Harker, a widow about twenty-six years of age, and took her, about a week after his wife's death, into his home to live. Before his wife died, he bought her a house dress and she wrote him while in a hospital and stayed at his house off and on after she first went there. He gave her $5 every two weeks and paid her insurance-90 cents a week. In consequence, Annie Thelma Smoak left and went to the home of Evylin Horne. Evylin Horne testified, in part: "Mr. Smoak came to the house about 4 o'clock or a little after one afternoon in October, 1936. * * * He said 'Thelma, why did you leave home?' and she said 'I could not get along with Mrs. Harker, and I thought it would be best to leave home.' * * * Thelma said 'Daddy I can't have any friends, and nobody can come to see me,' and he said 'Why'? She said 'Mrs. Horne won't let her children come there because Mrs. Harker is there,' and he said 'She is a perfect lady.' I said 'All I know is what Thelma has told me.' Thelma said 'Please don't let Daddy take me,' and she kept holding my hand, and said 'I am scared to go home, I don't know what he will do to me.' * * * Mr. Smoak said 'Are you coming home'? and she said 'No,' and he kept asking her why, and she kept telling him she could not get along with Mrs. Harker. He said 'I have a housekeeper there,' and she said 'I know, but you make me do all the work.' * * * All the time Thelma was crying." Thereafter the matter was taken up with the welfare officers of New Hanover county and she went to her father's home.

Wash Morgan testified, in part: "I know E. L. Smoak. He came to my place some time in the fall of 1936. Q. State what conversation you had with him, please, in reference to Thelma Smoak, his daughter? (Exception). A. He came there about 3:30 o'clock on a Wednesday evening. He came to my store about the middle of October, and asked if I knew where his daughter, Thelma, was, and I said I did not. I said she stayed down here Monday night. I asked him what was the trouble between him and Thelma. He said she was running around and doing a whole lot of lying. I asked him about what, and he said concerning him and Mrs. Harker, and if she didn't quit it, he was going to beat her half to death. I asked him about Mrs. Harker and he said Mrs. Harker had not stayed a night in his home, and had not been in his home in over a month, and he said if she did not stop lying on him he was going to kill her. (Exception). At the solicitation of the sheriff I went up in the jail and made that statement in the presence of Mr. Smoak, and he told me I was lieing." Mrs. Wash Morgan and Annie Morgan testified to the same effect as to defendant's threat to kill his daughter.

On Thanksgiving evening, November 26, 1936, Annie Thelma Smoak was taken sick while in an automobile with defendant and Mrs. Jeannette Harker. She was taken to a hospital and defendant said he had given her one "B. C." powder. She recovered from the attack. Before her death, Annie Thelma Smoak was perfectly normal and slightly nervous. Defendant had brought home some capsules which he said was quinine prescribed by Dr. W. J. Lancaster. Dr. Lancaster testified that he had not prescribed anything for defendant's daughter, nor had he been consulted about her condition. It was in evidence that immediately after the death of Annie Thelma Smoak the defendant took steps to collect the insurance on her life.

Dr. Heywood M. Taylor testified, in part: "I am Assistant Professor of bilogical chemistry and toxology at Duke Medical School. (Court) Let him explain what a Toxicologist is. Ans: A Toxicologist is one who detects the presence of poisons. I got my B. S. in chemistry at the University of North Carolina; my Master of Chemistry and my S. and PHD at the same institution. I further had special training in toxology with Dr. Gadler in the Chief Medical Examiner's office in New York City. I was there for three months. I was also an instructor at the University of North Carolina in general chemistry, analytical chemistry and organic chemistry. I have been connected with the Duke University since July 1, 1930." Dr. Taylor was found by the court below to be an expert in toxology and chemistry, and was asked the following questions:

"Q. Assuming the jury should find from the evidence, and beyond a reasonable doubt that Annie Thelma Smoak died on December 1, 1936; with violent convulsions; her head drawn back, and her hands clinched; that she was practically rigid; that the undertaker had to straighten her fingers out; that she was taken to Orangeburg, S. C., buried, and on December 10th, the body was exumed; that the liver, kidneys, and brains were taken therefrom, carried to you, and from the chemical analysis you made, and the strychnine you found there, have you an opinion satisfactory to yourself as to the cause of her death? Ans: Yes, sir.

Q. What is it? (Exception) Ans: My opinion is she died from strychnine poisoning. * * * A therapeutic dose of strychnine is two milligrams. In ordinary every-day language, that would be a regular medicinal dose. I found approximately seventeen times that amount in the viscera of Annie Thelma Smoak. Two milligrams, roughly speaking, is the thirtieth of a grain and I said I...