Wrather v. State

• Decision Date: 03 April 1943
• Parties: WRATHER v. STATE.
• Court: Tennessee Supreme Court

169 S.W.2d 854

179 Tenn. 666

WRATHER v. STATE.

Supreme Court of Tennessee.

April 3, 1943

Error to Criminal Court, Davidson County; Chester K. Hart, Judge.

Bertie L. Wrather was convicted of murder, and she brings error.

Reversed and remanded.

Albert Williams, Joe Brown Cummings, and Philip M. Howse, Jr., all of Nashville, for plaintiff in error.

Nat Tipton, Asst. Atty. Gen., for the State.

CHAMBLISS Justice.

Plaintiff in error appeals from a conviction of murder by poison of her son, Enoch B. Wrather, Jr., twenty-four years of age, with a prison sentence of ninety-nine years. It is conceded that the deceased died from arsenic poisoning. The question presented is whether or not the jury was justified in finding that the poison was administered feloniously, and if so by his mother a woman forty-nine years of age, in whose home and that of his father the deceased resided and where he died on the 6th day of September, 1939. A theory apparently suggested is that his poisoning was an accident, resulting incidentally from the use of arsenic by him in spraying, or some like treatment of shrubs, trees or plants on the premises which it appears had been his custom.

The evidence of the guilt of Mrs. Wrather relied on by the State is altogether circumstantial, and the earnest insistence is made that this evidence fails to sustain the verdict under the well settled rule applicable to cases of purely circumstantial evidence, that the proof must not only be consistent with and point to the guilt of the accused, but must be inconsistent with any reasonable hypothesis of innocence. Also, it is insisted that no adequate motive, of special importance in cases of circumstantial evidence, is shown.

Another insistence is that the corpus delicti was not established there being no satisfactory proof that the death was brought about by a criminal agency.

By other assignments it is urged that prejudicial errors were committed in the admission of testimony, the examination of witnesses, the argument of prosecuting counsel, and in the charge of the Court.

The Wrather family, consisting of the father, mother and son resided at the time of the death of the son, Enoch, Jr., on the Murfreesboro Road, a few miles south of Nashville, on a small farm owned by the father of the deceased. Mr. Wrather Senior, had been engaged in the mattress business in Nashville for many years and his wife had been associated with him in the conduct of this business, being a woman of good business education and training. She seems to have looked after the correspondence and accounting, etc., for which she received a salary of $12.50 per week, while he devoted himself to the manufacturing department of the business. They appear to have been in good financial circumstances. The deceased had worked for some time with an undertaking firm, later with a chemical company, and at this time was working on his father's small farm and being paid $1 per day and his board. He does not appear to have been a financial burden on them and so far as the record shows had given them no trouble and the family relations altogether were harmonious and agreeable. Indeed, the record is replete with testimony to the devotion of both parents to this only son, and particularly the affection existing between the mother and son. Mr. Wrather testified that the son commonly addressed and spoke of his mother as "Mother-dear," and that she called him "darling" and used other pet terms. He says that she was accustomed to furnish her son "spending money" from her meager earnings.

The deceased first showed signs of the illness which culminated in his death two months later, on the evening of July 6th. He left his home about 5:00 P.M. in a car. His father and mother had spent that day, as usual, at their work in town, and met and passed him on his way into the City about 5:30. A little later, about 7:30, he appeared at the home of a young lady friend, Miss Mary Katherine Moats, to whom he was attached and paying attention. He took her and lady members of her family for a drive, and later he and Miss Moats drove together out Harding Road. She says they purchased and each ate an ice cream cone. Not long after he was seized with violent pains and was forced to vomit. They returned to her home and he was so much affected that she induced him to spend the night. She says she heard him giving signs of distress during the night. About five o'clock he left for his home, where his father says he arrived about six and on alighting from the car vomited and seemed in pain. This was Friday, July 7th. He was given home remedies and got temporary relief and his parents went to their work, calling up to ask about him during the day. Continuing to have recurrences of the sick spells, Dr. A. C. Dickson was called in. He attended the young man, making six or seven calls in the next ten days. He says he discussed with Mrs. Wrather the possibility of her son having taken something on account of some girl friend, suspecting some character of poison. He also says he inquired if there was any possibility of his having been working about poison, although he does not seem to have suspected or suggested arsenic. He says he obtained a history of the case when he first saw the young man, who told him that he had eaten a meat sandwich in town the night before. The deceased seems to have made this statement on one or two other occasions to other physicians. We think the deduction is reasonable that he probably ate a sandwich before he saw Miss Moats on that evening, as it does not appear that he had taken a meal at home before coming to town. On or about the 19th of July, Dr. Dickson went on a vacation. He says that at that time the young man seemed to be somewhat better of his vomiting and diarrhea. However, he had begun to give indications of trouble with his hands and feet, in the nature of paralysis, having difficulty in making use of them. This trouble later developed so that he was unable to walk alone and could not at times feed himself. Dr. Dickson suggested to the family that if he did not improve in this regard, another physician should be consulted. This was on Wednesday. Disturbed about this condition in his extremities, on Friday, the 21st, Mrs. Wrather went to the office in the City of Dr. R. N. Herbert, who had been the physician of Mr. Wrather and for whom he expressed preference. After she had explained to Dr. Herbert her son's condition, he suggested that he be brought to his office for an examination, and the next morning, Saturday, Mrs. Wrather carried her son to Dr. Herbert's office, who, after making some examination and obtaining a history of the case, recommended that he be taken to the St. Thomas Hospital for a check up. This was done, and one or two other physicians were brought into consultation. His trouble was diagnosed as poly-neuritis. Dr. Herbert found him 75 per cent depleted physically, with very little control of his limbs, etc. Dr. Herbert, in his testimony, introduced the report or statement made at the hospital written by Dr. Patterson, connected with St. Thomas, reading as follows: "No history of penile lesion, no tobacco, and alcohol in moderation. Gonorrhea two years ago, and for the past two weeks has had difficulty in starting stream. No headache, no vomiting, except gives history twelve days ago that he was seized with a vomiting spell in New York while drinking gin and could not eat anything for ten days." Dr. Herbert was asked about the statements in this report and he said that the young man had told him that he had been seized with a vomiting spell in New York. There is no explanation in the record of this evident mistake, as the proof shows that he had not been in New York. Dr. Herbert stated that he had examined his urine, for sugar, albumen, blood, pus and cast, and found it negative.

The next afternoon, which was Sunday, the young man was discharged from the hospital and drove with Miss Moats to the home of an aunt, a Mrs. Reynolds, sister of his father, whose home was in the City, and there he spent the following week. Neither his father nor his mother saw him during this week although it appears that both communicated with him from time to time by telephone. Miss Moats visited him for an hour or two several of the evenings and testifies that she did not observe any evidence of vomiting or diarrhea. However, being disturbed about the condition of his limbs, she arranged with a Dr. Sikes, a physician she knew who called in Dr. McKinney, to examine the young man. They appear to have reached no very definite conclusion, but expressed the view that he was suffering from what they termed multi-neuritis, a lack of nutrition, and called up Dr. Herbert and reported to him, having understood that he was the physician in charge of the case. They recommended that he be taken back to the hospital and thereupon he was taken again to Dr. Herbert, who sent him back to St. Thomas Hospital which he re-entered about August 1st, and where he remained until the 13th of August, which was Sunday. On that day he was taken in an ambulance to his home and was carried on a stretcher to his room and bed. He was at home from that time until his death on the 6th of September, a little more than three weeks later. During this period, he appears to have grown progressively worse. He had less and less use of his limbs and continued to have from time to time nausea, vomiting and diarrhea in varying degrees of severity. Some days he seems to have been practically free from this trouble and at other times he would have rather severe attacks. For a time his meals were prepared by different women employed on the premises, his mother continuing to go in every day with his father to the mattress factory. ...