State v. Wilson

• Decision Date: 09 November 1889
• Citation: 22 P. 622,42 Kan. 587
• Parties: THE STATE OF KANSAS v. FRANK E. WILSON
• Court: Kansas Supreme Court

22 P. 622

42 Kan. 587

THE STATE OF KANSAS v. FRANK E. WILSON

Supreme Court of Kansas

November 9, 1889

Appeal from Sedgwick District Court.

PROSECUTION for murder in the first degree. At the March term, 1889, the defendant Frank E. Wilson was tried and found guilty as charged; new trial denied, and sentence accordingly. He appeals. The opinion contains a sufficient statement of the facts.

Cause reversed and remanded.

Sturdevant & Sturdevant, for appellant.

L. B Kellogg, attorney general, and W. S. Morris, county attorney for The State.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

On the 28th day of July, 1888, about 7 o'clock in the morning the dead body of Bertha Miller, a woman of medium height, weighing about one hundred and seventy-five pounds, and described as being "very fleshy," was found in her own house on Hydraulic avenue, in the city of Wichita. This house was on the west side of a street running north and south, faced the east, and consisted of three rooms on the ground floor and one above. The north front room was a sitting-room; immediately south of and adjoining the sitting-room was a bed-room, with a communicating door between them, and in the rear of the bed-room was a kitchen. The dead body of Bertha Miller when first found by a neighbor was lying on the floor of the sitting-room, two or three feet from the door leading into the bed-room, with her head toward that door and her feet extended toward a north window in the sitting-room, face downward, the body fully extended, her right arm extended, with the fist of the right hand clutched, the other arm somewhat under her body. Her hair was very long, and thrown forward. Her face, nose, chin and breast showed distinct marks or indentations of the carpet upon which the body rested. There were no fractures of any of the parts. There were no bruises or marks of a blow about the head. There was a crease or mark about the neck that looked as if it might have been produced by a cord. There were some bruises about the neck, and distinct finger-marks about the neck and shoulders. There was a kind of cut or bruise upon the extended hand. The only clothing upon the body was a chemise and nightgown. There was a bed in the south room, and the bed-clothing was somewhat disarranged. A small revolver was found in the bed, but the record does not show whether it was loaded when found, or had been recently. There was a small tub or tobacco pail sitting in the room, covered by a bed-quilt, and it contained bloody water. There was no blood on the body or about the rooms. One witness testified that he saw some white foam or froth on the carpet close to the mouth of the deceased. The evidence of the only medical witness that was examined was, that the woman had died of suffocation and strangulation; and he added, "In other words, you might say that she had been smothered and held down and strangled at the same time." He also stated that if a woman of her weight had fallen right on the face, and struck the face and forehead, that would have been sufficient to produce the indentations of the carpet; and that he was not able to state whether these impressions were caused by the falling of the body itself, or by an outward and external force applied after the body had fallen. When the body was first discovered, and until its removal to the place where the coroner's inquest was held, the exposed parts were very dark and much congested; but exposure to the air during removal, or some other cause, removed much of the congestion. The doctor was also of opinion from the indications that the finger-marks upon the neck and shoulder were made before death. He first saw the body about nine o'clock in the morning, and thought she had been dead from ten to fourteen hours. The neighbor who first discovered the dead body by looking in the north window of the sitting-room stated that the screen on that window was partially torn off from its fastenings and rolled up. The lower light in a front window had been broken half out, and the broken glass was lying on the inside of the house on the carpet, but the opening was so small that an ordinary-sized man could not pass through. The kitchen door was not fastened. There was some evidence tending to show that Bertha Miller was troubled with lung disease, and that she had told an acquaintance some time before her death that "she was liable to die" or drop off at any time. She was living alone, having been separated from her husband for about one year before her death. The husband testified that she had lung troubles and female weakness. So far as the record discloses, there was no robbery of the house 590 at the time of her death; her purse, containing some money, was found, and turned over to the sheriff.

The appellant, Frank E. Wilson, is charged with the murder of Bertha Miller. He had a preliminary examination on the 6th day of September, 1888, and on the 10th day of December following an information was filed against him. The first count charges a willful, deliberate and premeditated killing, by placing a cord or other fabric around the neck; and by drawing it tight and twisting it around did strangle and kill, etc. The second count charges a willful, deliberate and premeditated killing, by means of an assault and throwing the body down, and by pressing the face and nostrils until the deceased was strangled and choked to death. The third count charges a willful, deliberate and malicious killing, by placing a cord or some unknown fabric on and around the neck of the deceased, and by throwing the body on the ground, and by twisting and drawing tight the cord, choking and strangling her to death. At the trial the court stated in the instructions to the jury that the state had elected to stand on the second count. The appellant was convicted of murder in the first degree, and sentenced accordingly. The evidence for and against him may be briefly summarized as follows: Mrs. Mary O'Rourke testified that on the morning of the 28th day of July, between the hours of 9 and 11 o'clock, Frank E. Wilson came to her house on Ellis avenue, and said, "'Have you heard the news?' and I says, 'No; what?' and he says, 'They have got Page in jail.' 'Page in jail,' I says; 'what for?' and he says, 'For murder.' And I says, 'Who?' and he says, 'The murder of a woman down on Hydraulic avenue last night, by the name of Miller.' I says, 'Frank, I don't believe it, for Mr. Page was at our house last night until 11 o'clock.' And he says, 'It's so; yes,' he says, 'it's so.' 'Yes,' he says, 'I have got him now right where I want him. He will get the rope, or the penitentiary for life. He has done enough with me and mine.' I says, 'Frank, that is a hard thing to say. A person is always innocent until he is proven guilty.' 'Guilty,' Wilson says; 'that letter is enough.' I says, 'What letter?' He says, 'A letter that was found lying by the dead body's side with his name signed to it -- Emanuel Page.' And I says, 'Where from?' And he says, 'From Kingman, Kansas.' I says, 'Frank, did you see that letter?' He says, 'Yes, I did.' And says I, 'Was you there?' And he says, 'Yes, I was.' 'Were there many there?' 'Yes,' he says, 'quite a good many.' 'Now take a friend's advice and keep your mouth shut, or they will arrest you.'"

To understand the force and effect of this evidence, it is necessary to state that Wilson and his wife had been living apart for some time; that the cause of that separation, as alleged by Wilson, was Page's attention to his wife. Before the time of the death of Bertha Miller, the wife of Wilson had procured a divorce from him, and had married Page. Near the dead body of Bertha Miller a letter was found, that, from the post-marks, had apparently been mailed at Kingman, Kansas, and directed in ink to Emanuel Page, Wichita, Kansas, and in pencil, 1024 N. Meade, and 605 N. Market. The letter reads as follows:

"KINGMAN, KANSAS, July 7, '88.-- Old Friend: My luck has run high ever since I left Wichita. I have on hand about $ 250 in cash, and on night before last succeeded in getting two very fine gold watches. I heard you had left your family. I am glad of that. Let me know if you are still at lumber yard, for I will be down in a few days, and want you to help me to do up Wichita. Let me know if Tom went to Kansas City. Keep things as still as a mouse, and look every way for Sunday. Write immediately. I am yours, and etc.

GNT."

It is admitted that the address of this letter is a forgery; that it does not bear the mark of the Kingman post office, or the reception-mark at the Wichita post office; but that these indorsements are stupid imitations of the same. This letter was found by a policeman, and was not made public until after the arrest of Page, and that occurred some time after 12 o'clock of the 28th, and hence it is claimed that Wilson must have had some previous knowledge of the letter. His repeated threats against Page, and his knowledge of the letter before it was made public, are the strong points against him, as elicited by the testimony of this witness. The witness, Mrs. O'Rourke, persisted in fixing the time of this important conversation in the forenoon of the 28th, and between the hours of 9 and 11 o'clock. She stated, however, that Wilson was at her house on the evening of the 28th, and stayed there until about half-past 12 o'clock, and that during his stay they talked about the murder.

On the other hand, Charles A. Parsons, a hardware merchant at 406 East Douglas, testified that Wilson was in his store the morning of the 28th, about 8 o'clock. C. L. Stancel, a clerk in a boot-and-shoe store at 118 West Douglas, testified that to the best of his recollection Wilson was at the store between 8 and 9 o'clock on the...