State v. Thompson

• Decision Date: 04 February 1896
• Parties: STATE v. THOMPSON.
• Court: Missouri Supreme Court

34 S.W. 31

132 Mo. 301

STATE v. THOMPSON.

Supreme Court of Missouri, Division No. 2.

February 4, 1896.

CRIMINAL LAW — CONTINUANCE — EVIDENCE — RES GESTÆ — PROOF OF HANDWRITING.

1. A continuance was properly denied where the subpœna for an absent witness was issued on the 21st of March, and the trial was set for the 22d, and defendant knew the necessity of the witness' attendance for 10 days prior thereto.

2. In a prosecution for homicide caused by poisoning, that the jars in which the stomach of deceased was placed by the physician holding the post mortem were not hermetically sealed, does not render the analysis thereof, thereafter made, inadmissible in evidence.

3. In a prosecution for murder alleged to have been caused by poison contained in a lunch alleged to have been handed deceased by defendant, statements by deceased, and a person who partook of the lunch with him, as to their physical sufferings soon after eating the lunch, are admissible as res gestæ.

4. In such a case, statements by deceased to the person eating the lunch with him, made while eating the lunch, as to how and from whom he received the lunch, are admissible as res gestæ.

5. Unless writings are in evidence in the case, and are admitted to be the genuine handwriting of the party, they cannot be admitted for the purpose of proving the handwriting of such party.

Appeal from St. Louis criminal court; Henry L. Edmunds, Judge.

George Thompson was convicted of murder, and appeals. Reversed.

At the November term, 1894, the defendant, George Thompson, was indicted by the grand jury, in the St. Louis criminal court, for the murder of Joseph M. Cunningham by administering strychnine to him in cheese. He was arraigned on December 6, 1894, and entered a plea, "Not guilty." The cause was then continued to the January term, 1895. At the January term the cause was continued to the March term, and set down for trial on March 4, 1895. The cause appears to have been again continued to March 18, 1895, at which time defendant applied for a continuance on account of the absence of one Lizzie Hardin, which was denied because the court found from the evidence that Lizzie Hardin was then present in court. Thereupon the cause was reset for March 22, 1895, at which time defendant again applied for a continuance on the ground of the absence of a witness, one G. M. Lewis, alleged to be a resident of St. Louis. This witness was desired to testify that certain writings offered on the trial were not in the handwriting of defendant, but it appearing to the court that the subpœna for said witness had not issued until March 21st, and that a copy of the coroner's inquest, and the said letter referred to in the affidavit, had been in the possession of defendant's attorney for 10 days, the continuance was refused. The jury was duly impaneled March 22d, and on March 27th a verdict of guilty of murder in the first degree was rendered, and motions for new trial and in arrest were made and overruled, and defendant sentenced.

Joseph M. Cunningham was a man 32 years old, in good health. He was sexton of St. Peter's Church, which was located on the corner of Lindell and Spring avenues, in St. Louis. He had been sexton since Christmas, 1893. Prior to his employment the defendant, George Thompson, was sexton of said church. After the deceased took charge of the church, the defendant sometimes assisted him in his duties. The deceased was married, and lived at Clayton, St. Louis county. During the week of his death the deceased brought some mushrooms to a Mrs. McLean, who lived in the city. On Saturday morning, September 29th, he left his home at Clayton well and hearty. F. S. Beckett was the organist of St. Peter's Church at the time of the death of deceased. On Saturday, September 29, 1894, he went to the church to practice for the next day's service. He reached the church at 2 o'clock p. m. Cunningham was working on the lawn as he came to the church. Beckett went in, but only remained a few minutes; left the church, and made two or three calls, and returned about 4 o'clock p. m., and went to practicing. Cunningham, the deceased, was still sprinkling the lawn. Some 20 or 30 minutes after his return to the church, the deceased told him he had a lunch, and asked him if he would help him eat it. He said he would, and deceased said he would be in, and spread it out. When the deceased came in from the lawn, he called the organist, and, together, they went to the cellar. In the lunch there was a bottle of beer and a glass. He poured the organist a glass of beer, and he drank it, and they both ate some cheese and crackers; and the organist ate a Charlotte Russe and pear. The sexton ate heartily of the cheese and crackers. He had a good appetite. The organist only ate a small portion of the cheese and crackers, compared to the amount which the deceased ate. The organist said the cheese tasted bitter, and the deceased remarked that it was bitter. The organist did not feel any bad effects until he went upstairs. He left deceased before the latter had finished eating. He said: "I went up, and I felt rather sick, — at first, dizzy, — as I was practicing the organ, and I thought it would work off; and then I got cramps, and sort of stiffening. Then I tried to walk out, and at first I could not walk at all, and then I relaxed. I went out all right, and then I had pains in the back, and lockjaw, and something of that kind, all the time." "The deceased came back as I was practicing, and said there must have been something the matter with the cheese of the lunch. He said he felt quite sick. We compared notes, and so found we were both feeling the same." The witness then started for the doctor, or something, "and I had trouble in getting out. I could not." He said he had "a great many pains." "We both called for somebody, and some men ran up." "He [the deceased] called `Help' repeatedly. Mr. Waitz, among others, came in a few minutes, and it must have taken five minutes then to obtain Dr. Love. During this time the deceased, Cunningham, at first had convulsions, and then he got perfectly quiet after that, and didn't move a muscle." Dr. Love came, and administered antidotes to witness. When witness and deceased compared notes, they were both stiff. The organist was then asked by the prosecuting attorney if he knew how this lunch came there, or who brought it there, and if Cunningham made any statement as they went to the lunch, or were eating it, as to where it came from. To this defendant objected. In the absence of the jury the witness answered "that, while they were eating the lunch, deceased commenced telling him that the lunch had been sent to him; that Mrs. McLean had sent it by her hired man." The court excluded this evidence. The witness identified the basket and the two articles of glassware. He also testified deceased drank a glass of the beer. He testified he discovered no bad taste about any of the lunch but the cheese. Peter Waitz testified he worked at 3700 Lindell avenue, for Mr. Alva Mansur. St. Peter's Church was right across from Mr. Mansur's. He knew the defendant. Defendant had been sexton of St. Peter's Church when it was on Grand avenue. He knew the deceased. Had known him eight years. On the afternoon of September 29, 1894, he saw defendant and deceased, about 2:15 or 2:30 p. m., standing on the woodwork that goes in back of the church, talking to each other. They were just the width of the street from witness. Deceased had been washing his sidewalk, and was dressed in his working clothes. Defendant had on a blue working jacket, and a white straw hat. About 4 o'clock the same afternoon he heard the cry for "Help" from the church, and then heard it repeated; and he went over to the church, and was the first person that reached deceased. He found deceased already speechless and dying, and Beckett, the organist, unable to talk. He identified the basket and glasses, and testified that the bottle had Anheuser-Busch trade mark. The witness undertook to tell that Beckett, the organist, said, in answer to Dr. Love's question how he was poisoned, "that Cunningham, the deceased, got some lunch from McLean's man," but he was not permitted to state that. Hiram Stemberg testified he knew defendant. Defendant had been sexton of St. Peter's Church, and witness was member of the choir until Easter of 1894. Defendant ceased to be sexton about the first of 1894. Some time in February, 1894, defendant met witness near the old church, corner Grand avenue and Olive, right across from Beer's Hotel. They spoke, and defendant had a bottle, and he offered to pay witness to give it to Cunningham. He said it was blackberry brandy and whisky. He said Cunningham gave him a mixture of that kind, and it made him drunk, and that caused him to lose his place as sexton. Witness took the bottle. It contained a liquid. He told him he would take it. Witness went back of the church, and broke the bottle on a rock. This was Sunday night. The next Wednesday night, after a rehearsal, he met defendant again, across the street from the church. He called witness to him, and asked if he gave Cunningham the bottle, and witness told him "Yes," when the prisoner called him a liar, and said, "If you had given him that bottle to drink, which I know you didn't, he would be drunk for a week." About the time defendant gave Stemberg the bottle, he was working at Mrs. Gordon's, on Westminster place, and he said he was also doing chores for Rev. Dr. Short. He made the fire in the furnace, and blacked his shoes. Sarah Dito testified she was a domestic servant in the employment of Mrs. Thomas McLean, 3708 Pine street. At the time of the poisoning of Cunningham, the defendant was employed by Mr. McLean and Rev. Dr. Short, rector of St. Peter's Church, to do the yard work. She testified that on Tuesday, about two weeks before the poisoning of deceased, he brought a basket of mushrooms to Mrs. McLean. Mrs. McLean was...