State v. Van Tassel

• Citation: 72 N.W. 497,103 Iowa 6
• Parties: STATE v. VAN TASSEL.
• Decision Date: 07 October 1897
• Court: United States State Supreme Court of Iowa

103 Iowa 6

72 N.W. 497

STATE

v.VAN TASSEL.

Supreme Court of Iowa.

Oct. 7, 1897.

Appeal from district court, Chickasaw county; L. E. Fellows, Judge.

The defendant was indicted, tried, and convicted of the crime of murder of his wife, by administering to her a lethal dose or doses of strychnine. He was sentenced to life imprisonment, and from the judgment of the court appeals. Affirmed.J. R. Bane, for appellant.

Milton Remley, Atty. Gen., and T. C. Clary, Co. Atty., for the State.

DEEMER, J.

The record is very voluminous, consisting of more than 500 closely typewritten pages. A large number of errors are assigned, and we have examined the whole record with the care the importance of the case seems to demand.

1. The indictment is questioned. It is said that it does not allege that defendant did feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, poison, kill, and murder his wife. The indictment charges “that defendant did feloniously, willfully, unlawfully, premeditatedly, and of his malice aforethought, contriving and intending one Ora Van Tassel, with poison, feloniously, willfully, unlawfully, and with his malice aforethought, to kill and murder, * * * did privately and secretly mix with food, water, and some other substance * * * strychnine; * * * and the said Ora Van Tassel did take, drink, swallow, the said water, food, and other substance with which the strychnine was mixed, * * * by means whereof * * * the said Ora Van Tassel * * * died. * * * And so the jurors * * * say that * * * the defendant, * * * in manner and form aforesaid, * * * the said Ora Van Tassel, unlawfully, feloniously, willfully, and deliberately, premeditatedly, and of his malice aforethought, did poison, kill, and murder. * * *” In another count of the indictment it is charged “that * * * the defendant, on account of the giving and administering of said poison * * * to the said Ora Van Tassel, did willfully, feloniously, premeditatedly, deliberately, unlawfully, and of his malice aforethought, kill and murder the said Ora Van Tassel. * * *” Under our statute (Code 1873, § 3849), “all murder which is perpetrated by means of poison * * * is murder in the first degree. * * *” The unlawful administering of poison with bad motive or intent constitutes murder under this statute if death ensues, and it is immaterial whether or not there is a specific intent to kill. State v. Wells, 61 Iowa, 629, 17 N. W. 90. It is unnecessary, then, to charge that the defendant did unlawfully, feloniously, deliberately, and premeditatedly kill and murder his wife; but, if such an allegation were necessary, we think it is sufficiently charged in the second count of the indictment, if not in the first. State v. Shelton, 64 Iowa, 333, 20 N. W. 459;State v. Perigo, 70 Iowa, 657, 28 N. W. 452.

2. The defendant's father testified to the insanity of a brother, an uncle of the defendant. At the conclusion of defendant's evidence, the state moved to strike this testimony as immaterial and incompetent, for the reason that there was no evidence that defendant himself was insane, or showed any symptoms of insanity, at the time the poison is said to have been administered. This motion was sustained. Defendant also asked an instruction relating to insanity as a defense. This instruction was refused. Of these rulings complaint is made. We do not find any evidence, aside from that above quoted, which tended to show that defendant was insane. On the contrary, the records show him possessed of more then the ordinary grade of intelligence. The particular form of insanity with which the uncle is afflicted was not shown, and there is no evidence aside from this isolated fact tending to show that defendant was not in his right mind. Was this single circumstance admissible in evidence, and did it call for an instruction with reference to insanity as a defense? When there is evidence of a want of motive or other evidence furnishing a basis for inquiry as to the insanity of the accused at the time of committing the criminal act, evidence of hereditary insanity may be introduced. But mere proof of insanity in a parent will not be sufficient to constitute a defense if the other evidence negatives the presence of insanity in the accused. Lovegrove v. State, 31 Tex. Cr. R. 491, 27 S. W. 191. Proof of hereditary insanity is admitted as cumulative evidence, and insanity of ancestors is of itself no defense. 1 Whart. & S. Med. Jur. § 377; Laros v. Com., 84 Pa. St. 200; Snow v. Benton, 28 Ill. 306;Sawyer v. State, 35 Ind. 80. The reason for this, undoubtedly, is that the burden is upon defendant to establish this defense by a preponderance of the evidence. State v. Felter, 32 Iowa, 49. And proof of an isolated case of insanity in the family, especially that of a remote relative, will not of itself overcome the presumption of sanity. The instruction asked was faulty, in that it did not apply the right test by which to determine the mental responsibility of the defendant.

3. The defendant's name appeared upon the register of the Arlington Hotel at New Hampton, and the state was permitted to use this as a basis for comparison by its witnesses is proving the genuineness of a signature attached to a confession purporting to be signed by the defendant. It is said that the signature appearing upon the hotel register was denied by defendant, and that there was no proof that defendant signed the name appearing there. The objection now made is that it was error to permit expert witnesses to use this as a basis for comparison. No such objection was made upon the trial. The objection then made was to the competency of the expert, and not to the competency of his testimony. As defendant was then content with the identification of his signature appearing upon the register, he cannot now be heard to complain. The exhibit itself was not admitted in evidence, and could not properly have been used as a basis for comparison had timely objection been made. As it was not made, there was no error. State v. Cater (Iowa) 69 N. W. 880.

4. At the conclusion of the evidence, defendant's counsel moved to strike out all the evidence of Dr. J. B. Horton, as to an autopsy held upon the body of Ora Van Tassel, the woman who it is claimed was murdered, and as to the examination and identification of certain organs of her body, because it was immaterial, irrelevant, and incompetent. The exact ground does not appear from the objection itself, and, upon turning to the argument, we find but little said in support of the objection. Evidence was introduced without objection showing that an autopsy was held; that the stomach, a part of the liver and spleen, one kidney, and part of the intestines, were removed from the body of the deceased, and placed in fruit jars or cases by Dr. Horton, preparatory to being sent to Chicago for chemical analysis. That such evidence was legitimate is plain.

Defendant also moved to strike the evidence of Dr. Haines, the toxicologist, who examined what were thought to be the organs taken from the body of Mrs. Van Tassel, on the grounds that the said organs were not sufficiently identified. It is claimed in argument that the identification must be complete; that the evidence must establish their identity to a moral certainty and beyond all reasonable doubt. This objection was not urged to the evidence when given, but was by motion made at the close of the introduction of the evidence; and it is questionable whether it was made in time. As said by Judge Dillon, in the case of State v. Moore, 25 Iowa, 138: “In a case of this kind, the party cannot sit silent and wait until the evidence is in, willing to take the benefit of it if it shall chance to be for him, and insist as a matter of right to exclude it if it be against him.” Without reference to this rule, however, we do not think the court was in error in denying the motion. The evidence fully identifies and accounts for the whereabouts of these organs from the time they were taken from the body of the deceased until they reached Dr. Haines, except for the space of an hour or so when they were left sealed in the office of Dr. Horton, while he went to dinner, and while they were in transit by the express company from Nashua to the city of Chicago. If they were properly delivered to the express company for shipment to Dr. Haines, in Chicago, as the evidence shows they were, this is sufficient to cover the period of time necessary to their shipment. When Dr. Horton went to his dinner, he left the jars containing the organs he had removed from the body in his office, but he says that they were locked up in a commode, and that he also locked the office door when he was away, and that no one was in the room while he was gone. The city marshal assisted Dr. Horton in packing the jars containing the organs taken from the body of the deceased, and, as soon as they were packed, the marshal took the box, and delivered it to the assistant express agent, who held it in his possession, and had it under his immediate supervision, until it was shipped to Chicago. Dr. Haines received the box in the apparent condition in which it was when shipped, and analyzed the contents of the jars. Surely, this was a sufficient identification to justify the admission of Dr. Haines' evidence. There is some little conflict as to the number of jars sent and received, but this is not of itself sufficient reason for rejecting the evidence.

5. It is said that the court erred in admitting in evidence certain letters, papers, and documents surreptitiously taken from the premises and possession of defendant without his consent, thus compelling him to give evidence against himself. The condition of the record makes it difficult to say what foundation there is for this claim. We find that, when defendant was being cross–examined, he was called upon to identify his signature to a bond, to certain letters signed by himself, and a...