State v. Ward

• Decision Date: 05 January 1921
• Citation: 111 A. 805
• Parties: STATE v. WARD.
• Court: Maine Supreme Court

111 A. 805

STATE

v. WARD.

Supreme Judicial Court of Maine.

Jan. 5, 1921.

Appeal from Superior Court, Androscoggin County, at Law.

Edgar M. Ward was convicted of murder, and he appeals from a denial of his motion for a new trial. Motion overruled.

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, MORRILL, and WILSON, JJ.

Frank A. Morey, of Lewiston, for appellant.

Guy H. Sturgis, Atty. Gen., and Albert E. Verrill, Co. Atty., of Auburn, for the State.

SPEAR, J. In this case Edgar M. Ward was indicted at the October term of the su- perior court in Androscoggin for the murder of Marie Bernier of Lewiston.

From the evidence in the case, we are of the opinion that the jury was warranted in finding beyond a reasonable doubt the following facts:

(1) The corpus delicti.

(2) That Marie Bernier was poisoned by taking internally sulphate of strychnia.

(3) That the medium through which it was conveyed to her stomach was whisky.

(4) That the whisky was furnished by the respondent, and contained in two 14-ounce bottles called small pints.

(5) That neither bottle when purchased by him contained any strychnine.

(6) That one bottle was drunk by several people, one-half by himself and Mrs. Bernier, without any evidence or effect whatever of strychnia or other drug.

(7) That one-half of the other bottle was drunk by the respondent and decedent between 6:40 and a little after 8 o'clock in the evening without any poisonous or unusual effect.

(8) That he alone took another drink— offered to Miss Giroux—a little after 8. o'clock.

(9 That there was then left in the bottle only two drinks of whisky.

(10) That about half past 9 he and Mrs. Bernier drank the two drinks remaining in the bottle.

(11) That in the bottle that contained these two drinks was deposited a quantity of strychnine that killed Mrs. Bernier in the course of half an hour and brought the respondent to the point of death.

None of the above facts is in dispute, except the kind of poison which caused the death. A long controversy arose in the trial as to how long a time it would require to complete the solution of sulphate of strychnine in whisky. There was no question, however, that if sulphate of strychnine was actually mingled with whisky its presence there would be manifest in the form of either solution or suspension. It would therefore seem entirely immaterial in what form she took the poison. It was enough. It killed her. The wood alcohol theory was abandoned.

We therefore reiterate that the evidence warranted the jury in finding that strychnine was the drug. Accordingly the only question for consideration is, Was the jury warranted in finding beyond a reasonable doubt that the respondent, through the medium of the whisky contained in that bottle, intentionally administered the fatal drug?

Upon this question the testimony of the respondent can be regarded as of very little value except as it is corroborated by circumstances, probabilities, and other evidence which tend to give it probative force. When the respondent takes the stand in his own behalf, however guilty he may be, he always denies the truth of the offense with which he is charged and aserts his innocence. Otherwise there would be no trial.

In view of the above proven facts, the first important inquiry is: When was the poison deposited in that bottle of whisky? There can be no reasonable doubt that it was not put in by the seller who took it all from one large bottle. Hence it was not in the bottle when it came into the possession of the respondent. This conclusion seems to be made impregnable from the fact that the whisky was originally taken from one large bottle, was all drunk by several persons, including about a pint and a half by the respondent and Mrs. Bernier, to within two drinks left in the bottle, without the slightest deleterious effect or even suspicion of the presence of any drug of any kind. It therefore follows that the poison was 'deposited after the contents of the last bottle were reduced to two drinks. If so, either Ward or Mrs. Bernier inserted it. If the above conclusions are correct, he and Mrs. Bernier had the exclusive opportunity. He says, however, that he did not see Mrs. Bernier do it, and her exclamation, when in convulsions, "He has doped me," corroborates him. If she did not, it follows that he must have done it.

Not only the logic of the case, but the evidence, points directly to him.

There was present with him and Mrs. Bernier that evening from a little after 8 until this tragedy happened, a young woman and friend of Mrs. Bernier, by the name of Delia Giroux. Nothing appears from the evidence which indicates that Miss Giroux was biased or prejudiced in her testimony or had any reason to be. The jury had the advantage, which we have not, of seeing her on the stand, and of observing, under a severe cross-examination, her character, mentality, tendency to exaggerate or minimize, her prejudice or bias, her disposition to tell the truth or prevaricate, her opportunity to know the facts in respect to which she testified, her appearance and manner of giving her testimony, and from these tests of arriving at an intelligent conclusion as to the value and weight of her testimony.

If the jury had a right to test the value of her testimony—and we think it has—it will appear from the evidence, not only that Ward had an opportunity to put the poison into the whisky, but that he has prevaricated upon the most vital piece of evidence in the case.

It should be here noted that in all of the tales of what occurred on that fatal evening the respondent in a general way corroborates Miss Giroux as to all that was said and done, except as to her testimony, which tends to show his guilty acts.

Her evidence shows that Ward had exclusive opportunity to place the poison in the bottle. She says that about 9 o'clock Ward i and Mrs. Bernier went into the kitchen, and he said: "You send her away, and I will go." Then she, Mrs. Bernier, came back into the sitting room, and "he came back, not in the sitting room, but to the shelf there, and got the satchel and the bottle and the glass, and he went out of my sight into the kitchen." Mrs. Bernier was then "on the chair at the foot of the couch." She says he was gone about 5 minutes. All this time he was by himself in the kitchen or elsewhere out of sight of both the women, having with him his satchel, the bottle containing the whisky, and a glass. This testimony shows ample opportunity, and it goes much further. The inference, in view of the proven fact that there was strychnine in the whisky, is entirely consistent with the conclusion that he took the satchel containing the strychnine, the bottle containing the whisky, and the glass in which to mix the poison and from which to pour it into the bottle containing the whisky.

This inference is strongly corroborated by the admitted fact that the whisky in the two bottles, which originally came from the same source, was all drunk, except the two drinks left in the bottle which Ward took with him into the kitchen, without producing the slightest unusual effect, and that the next drink proved fatal.

Thus Miss Giroux's testimony on this vital point was overwhelming, if true. We think the jury had a right to determine whether it was true or false, and found it true. The respondent denies that he was in the kitchen or elsewhere alone as above described by Miss Giroux. Otherwise her testimony is undisputed, but corroborated as above.

But the most vital piece of testimony in the case is found in a note, written on a single sheet of paper by the respondent, and discovered upon his person after he was taken to the hospital on the night of the tragedy. The note reads as follows:

"Am deadly sick—think whisky we have been drinking is made of wood alcohol—Marie I think is dead and I am failing fast—cannot move my legs now—never stole any autos in my life. P. S. Mother if I die I am sorry for all that I have done—father have my watch."

The vital issue upon this point is whether the evidence shows, beyond a reasonable doubt, that this note was written before Ward and Mrs. Bernier took their last drink.

The state claims that the evidence proves that it was. The evidence upon this point comes solely from Miss Giroux, and is, of course, denied by Ward.

She says that at about 9 o'clock he asked Marie if she had some ink, and filled up his fountain pen from ink he found in the desk, and then sat down and wrote a note. The conversation that ensued between Miss Giroux and Mrs. Bernier while Ward was writing is significant, if true, in its tendency to conclusively prove the time with respect to whether it was before or after the last drink that he wrote. Miss Giroux says:

"I said, to Marie, I says, T think he is writing a letter'—I told that in French—'I think he is writing so as to give it to you to tell me to go.' She said, 'No.'."

Either this conversation took place or it is a fabrication. It is, however, perfectly natural. If this detail is true, there can be no question as to the time of writing. But there is something further that is significant. She further says:

"After he wrote the note he went back to the couch, and a few minutes later took out the sheet of paper, placed it upon his knee, and wrote some more upon it."

A reference to the note proves this to be true. But the respondent claims that all this was done after the fatal dose, and after he saw Mrs. Bernier on the floor apparently dead, and felt himself to be in a critical condition.

All the medical men, expert or otherwise, agreed that the distinguishing features of strychnine poison were tonic, meaning continuous, convulsions, and that these convulsions are produced by touching the patient or by the patient coming in contact with something himself. Ward says he went to the desk and wrote the note—and does not deny that he filled his fountain pen—after he was numb in his legs, but before he had a convulsion,...