State v. Thompson
| Decision Date | 04 February 1896 |
| Parties | The State v. Thompson, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis Criminal Court. -- Hon. H. L. Edmunds, Judge.
Reversed and remanded.
Marion C. Early for appellant.
(1) The court erred in refusing to grant defendant's first application for a continuance: First. Because his counsel had not had sufficient time to prepare his case for trial. State v. Jewell, 90 Mo. 467; State v Lewis, 74 Mo. 222. Second. Because he had been unable to obtain a chemical analysis of the properties held by the state with a view to obtaining evidence upon his trial. Third. Because he had not obtained an inspection of certain writings alleged to be in the possession of the state with a view to securing evidence upon his trial. (2) The court erred in overruling defendant's second application for a continuance on the ground of an absent witness. Herein especial reference is made to defendant's first application for a continuance. State v. Warden, 94 Mo. 648. (3) The court erred in admitting the testimony of C R. Sanger, relating to the analysis made by him. First. Because his testimony showed that the jar containing the stomach and other matters was not "hermetically sealed" as when it left the hands of the coroner. Second. Because the cheese turned over to him for analysis was not positively identified as a portion of the same cheese as that partaken of by the deceased. Third. Because the cheese, if the same, was not properly placed under seal immediately and the necessary precautions were not observed to procure a fair analysis. Taylor on Medical Jurisprudence pp. 202-209; 2 Wharton and Stille, Medical Jurisprudence, secs. 4 and 17. Fourth. Because he was not acting under oath. Because he admits having allowed another person not produced in court, in the same room where the tests were conducted. It is sufficient grounds for the exclusion of such testimony that opportunity was offered for tampering with the articles submitted for analysis, and the slightest opportunity is fatal if offered. 2 Wharton and Stille on Medical Jurisprudence, sec. 18. (4) The court erred in admitting statements made by the deceased as a part of the res gestae, after he had left the place where the poisoning is alleged to have occurred. State v. Rider, 95 Mo. 474. (5) The court erred in admitting testimony as to statements obtained from defendant after his arrest. State v. Maxwell, 92 Mo. 542. (6) It was radical error for the court to admit certain irrelevant writings, produced by the state and marked exhibits "E, F, G, H, I," not already in evidence, simply for the purpose of comparison. Rogers on Expert Testimony [2 Ed.], secs. 133, 136; Rose v. Bank, 91 Mo. 399; Springer v. Hall, 83 Mo. 697; Doe v. Suckermore, 5 A. and E. 791. (7) It was radical error for the circuit attorney to state in his argument: Again, turning to the defendant he said: Wilbur v. Railroad, 48 Mo.App. 224; Evans v. Trenton, 112 Mo. 390; State v. Fitzgerald, 32 S.W. --; State v. Bobbst, 32 S.W. 1149.
R. F. Walker, attorney general, for the state.
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 subpoena for said witness had not issued until March 21, 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 ten days, the continuance was refused. The jury was duly impaneled March 22 and on March 27 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 thirty-two 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 29, 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 twenty or thirty 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 a 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: 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." 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...
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