People v. Smith

Defendant, who was charged with the murder of his wife, Mary Edla Smith, was convicted of murder in the first degree, was sentenced to life imprisonment, and now appeals from the judgment and from an order denying his motion for a new trial.

' The evidence is entirely circumstantial. The theory adopted by the prosecution at the trial was that the alleged homicide was perpetrated by means of cyanide administered by defendant to his wife on or about March 14, 1921, at their home at Bell Station, a suburb of Los Angeles. The principal points made for a reversal are that the court erred (1) in permitting the prosecution to give evidence of the contents of a certain stomach in the absence of legal evidence to identify it as the stomach of defendant’s deceased wife; and (2) in permitting the people to put in evidence a certain can of cyanide found in a part of the establishment where defendant was employed.

On the afternoon of Monday, March 14, 1921, the body of defendant’s wife was found in a sitting position in a chair in the living-room of her home at Bell Station. The remains were immediately removed to an undertaking establishment conducted by one G. G. Wheat at Huntington Park, a small town near Los Angeles, where the body was embalmed and prepared for burial. The following day defendant and the mother of the deceased requested that the body be taken to an undertaking establishment in Los Angeles conducted by a man of the name of Brown. Wheat testified that the body was “removed by Mr. Brown,” supposedly the Los Angeles undertaker. What became of it after it was “removed by Mr. Brown” is a matter that is left by the evidence in the airy regions of

[1] It was upon the contents of this stomach that the entire case for the prosecution rested. It was the sole basis for Dr. Wagner’s opinion that the person from whose body it was taken had died of cyanide poisoning. It was the sole basis for the evidence given by Professor Maas and the other experts who testified as to the character of the stomach contents. Defendant's counsel repeatedly, but ineffectively, objected to the introduction of any evidence respecting the contents of this stomach upon the ground that no evidence had been introduced to identify it as that of Mary Edia Smith, of whose murder defendant was accused. If there was no legal evidence to identify it as the stomach of defendant’s deceased wife, then, manifestly, to permit the prosecution, over defendant’s timely objections, to introduce evidence of its contents was not only error but highly prejudicial error. That there was no such

[2] There was no direct evidence that the body of defendant’s wife ever reached Brown’s undertaking establishment. Wheat testified, as we have seen, that the body was removed “by Mr. Brown.” That is the sole evidence as to what became of the body after it was taken by Wheat to his establishment. But aside from this manifest hiatus in the identifying testimony, there is no legal evidence that the body upon which Dr. Wagner performed the autopsy was that which had been removed from Wheat’s place. Though Dr. Wagner had not known Mrs. Smith in her lifetime, the only evidence as to the identity of the body from which he removed the stomach, spleen, a part of the liver and the left kidney is that given by Dr. Wagner himself, to whom, on direct examination, this question was propounded by the district attorney: “I will ask you whether you performed an autopsy upon the body of Mary Edla Smith.” Counsel for defendant immediately objected to the question upon the ground that it called for the conclusion of the witness, in that there was no evidence that the witness ever knew Mary Edla Smith. The objection should have been sustained. At the time when the question was propounded to Dr. Wagner, no evidence whatever, hearsay or otherwise, had been adduced to show that the body was in fact that of Mary Edla Smith. In the course of the doctor’s cross-examination, that witness, as we presently shall show, did give hearsay evidence to the effect that the person from whose body he removed the stomach was Mary Edla Smith. But, as we have just stated, at the time when the district attorney propounded' to Dr. Wagner, on his direct examination, the question to which defendant’s counsel made the objection last noted, no evidence of any kind whatever had been given or suggested to show that the witness had any knowledge of the identity of the person concerning whose stomach he was asked to testify. This notwithstanding, defendant’s objection was overruled, and the witness answered the question in the affirmative, saying, in effect, that he had performed an autopsy on the body of Mary Edla Smith at the morgue of W. A. Brown on March 15, 1921. On his cross-examination Dr. Wagner testified as follows: “Q. Now, all you know as to this being the body

[3] Dr. Wagner, who did not personally know the deceased, in the nature of things could not personally know that the body was that of Mary Edla Smith. Consequently, his testimony that an attendant in Brown’s undertaking establishment had told him that the body was that of Mrs. Smith could only place before the jury the statement of one, not under oath, who, being absent, could not be subjected to the ordeal of cross-examination. There is no evidence whatever that Taylor, the attendant from whom the doctor received the hearsay information, ever knew the deceased or that he had any means for knowing that the body which he pointed out to Dr. Wagner as that of Mary Edla Smith was in fact the body of that person. That the question propounded to Dr. Wagner asking him whether he had “performed an autopsy upon the body of Mary Edla Smith” called for hearsay evidence, that is, evidence “which does not derive its force solely from the credit to be given to the witness himself, but rests, also, in part, on the

[4] The fact that the mother of the deceased found in the “cooler,” shortly after the death of her daughter, certain vegetables which corresponded with those which Professor Maas testified to having found in the stomach that he examined does not rise to the dignity of a circumstance from which it may reasonably be inferred that the stomach was indeed that of Mrs. Smith. These vegetables are very common articles of diet, and doubtless could be found in the stomachs of a large percentage of persons in every community. There is nothing so peculiar about this fare that it should furnish any reasonable basis for the identification of this “hearsay stomach”—if we may borrow the felicitous phrase employed by counsel for appellant to characterize that portion of the human anatomy concerning which Dr. Wagner and Professor Maas were permitted to testify.

[5] It is falteringly suggested by the attorney-general, but, to his credit be it said, not insistently urged, that, peradventure, the case falls within the rule that identity of person may be presumed prima facie from identity of name. That is, it' is suggested that, in some vague way not made clear to us, the identity of this stomach is es

[6] It was error to permit the state to introduce, over defendant’s objection, the can of cyanide. For some months prior to the date of the alleged homicide a can of cyanide had been in the filing-room of the company for which defendant was working as a truck driver. This room was used by the company as a place for the filing and grinding of saws and other tools. The mill foreman, called as a witness for the prosecution, testified that the can of cyanide was kept in a corner of the filing-room, and that it was put there a little over a year before by one C. A. Ward, the company’s filer. The witness further testified that he saw the can in its place in the corner of the filing-room four, or five days after the alleged homicide; that he then, removed it and gave it to the detectives working on the case; that at that time there was dust—lumber dust and dirt dust—a sixteenth of an inch thick covering the top of the can; that a work bench runs up to within two or

Without doubt, it is the general rule that evidence that the accused had in his possession the means to commit the crime, or had an opportunity to do so, is ordinarily admissible when the evidence against him is entirely circumstantial. In applying this rule, however, caution should be exercised to avoid giving any undue significance to circumstances that are but the ordinary incidents of everyday life. The fact that the very existence of a prosecution tends to throw suspicion upon every act of the accused and to cause “trifles light as air” to assume the appearance of “confirmations strong as proofs of Holy Writ” should give pause to any heedless imprudence in the admission in evidence of circumstances that are barren of incriminating significance. As is well said by the learned author of Wharton’s Criminal Evidence (volume 2, section 915), “circumstances, trivial in themselves, take on an exaggerated character the moment that suspicion is directed toward a person accused of a crime; and because of this tendency, no circumstances should be admitted that cannot be shown to have a direct and obvious relevancy to the crime charged.” That the introduction of the can of cyanide as an exhibit for the prosecution was highly prejudicial cannot be gainsaid for a moment; but that it in any appreciable degree tended to show that the defendant used any of its poisonous contents to do away with his wife must be denied. The attenuated circumstance that a can such as this, behind concealing obstructions, was in the corner of. a room used by defendant’s employer as a filing-room, and to which the company’s employees, including defendant, had access, with no evidence whatever that defendant ever saw the can or had any knowledge that it was in the room, is not sufficient

Unless it be shown that defendant had knowledge of the presence of the can in the filing-room, its existence there is a circumstance of no evidentiary value whatever. That defendant, at any time, had knowledge of the existence of the can is a matter of pure conjecture. But the fact that an accused person had an opportunity to commit the crime with which he is charged is of itself only a circumstance, from which, with other circumstances, guilt may be conjectured or inferred; and it is the established rule that an incriminating circumstance from which guilt may be inferred must not rest on conjecture. It is not permissible to pile conjecture upon conjecture. We cannot build one inference upon another. (United States Cement Co. v. Whitted, 46 Ind. App. 105 [ 90 N. E. 481 ].) “ . . . one conjecture cannot be treated as a proved fact in order to reach another conjecture.” (Cohn v. Saidel, 71 N. H. 558 [ 53 Atl. 800 ].) “An inference of fact,” says the author of the article on evidence in Corpus Juris, “should not be drawn from premises which are uncertain, but the facts upon which an inference may legitimately rest must, it is said, be established by direct evidence as if they were the very facts in issue.” (22 C. J., p. 84. See, also, United States v. Ross, 92 U. S. 281 [ 23 L. Ed. 707 , see,

For the foregoing reasons, the judgment and order denying defendant’s motion for a new trial must be reversed. The assignments of error, however, present at least one other question of importance, which, as it is likely to arise upon another trial, we deem it proper to examine.

[8] The court overruled defendant’s objection to the introduction of a. letter written by him and mailed to his wife about August 1, 1919—a little more than a year and a half prior to the latter’s death. This letter, after relating how the defendant, faithless to his marriage vows, had had adulterous intercourse with a number of women during the years of his married life, continues as follows: “I haven’t the heart to talk any more about it. Enough to

It seems that defendant and his wife had separated three or four times prior to the alleged homicide, the last separation taking place about a year before that event and continuing for about three months. Thereafter they became reconciled, and, for some months immediately prior to the wife’s death, apparently were living together in peaceful and harmonious relations.

Appellant’s objection to the introduction of the letter is based upon the ground that, because it was written somewhat more than a year and a half prior to the alleged homicide, and because, some time subsequent to its writing, a reconciliation had ensued, the letter was too remote, in point of time, to have any legal bearing upon the issues. We think that this ground of objection goes to the weight rather than to the admissibility of the evidence. (See People v. Brown, 76 Cal. 573 [ 18 Pac. 678 ], and People v. Wilson, 23 Cal. App. 513 , 521 [ 138 Pac. 971 ].) Moreover, the letter was not introduced to show that the couple had previously quarreled. The purpose of its introduction doubtless was to show that, according to its admissions, defendant’s whole nature and make-up is such that he probably did not bear toward his wife that love and affection which ordinarily may be looked for in a true and steadfast husband. Indeed, in the letter defendant directly and explicitly confesses that he does not love his wife as a husband should. [9] No rule is more firmly established than that, upon the trial for murder of husband or wife, evidence tending to show illicit relations of the accused with another is admissible to show lack of love and affection for the defendant’s lawful spouse. (Porter v. State, 173 Ind. 694 [ 91 N.

There are other questions discussed in appellant’s brief, but as they probably will not present themselves upon a retrial of the case, we deem it unnecessary to comment upon them.

For the reasons given, the judgment and order denying defendant’s motion for a new trial are reversed.

Works, J., and Craig, J., concurred.