In this case, the defendant stands convicted of murder in the first degree upon an indictment which charges that the defendant willfully, feloniously and of malice aforethought poisoned the deceased, by giving and administered to her a quantity of poison, to wit, strychnine, and as a result of said poisoning said deceased died in December1943.’
A New York Family Lawyer said that the defendant is a pharmacist who for a period of years had been employed at a drugstore operated by the witness. He married the decedent in 1940 when she was twenty years old and he was thirteen years her senior. Although the record does not tell whether during the three years of their life together a child was born of the marriage, it does appear that the decedent was pregnant at the time of her death and that her pregnancy was not accompanied by unusual illness.
A New York Child Custody Lawyer said one evening, when the defendant was on duty at his place of business and the decedent was alone in their apartment she was called upon by her sister. At that time there were no indications that the decedent was ill. Within an hour after her sister left the decedent, the witness who lived on the same floor heard a strange noise which led her to open a door leading into the outside hallway. As she did so she saw the decedent standing in the doorway of the apartment apparently in distress. Upon going to her assistance she noted that the decedent’s body had stiffened, her face was drawn, ‘her eyes were like big saucers, very big, and she kept cringing like that, shivering, her body shaking.’ Her hands were clenched and drawn in toward her chest and her arms were bent from the elbows. After the witness had summoned by telephone the defendant, the decedent’s sister, and the decedent’s attending physician, she was aided by two other neighbors in placing the decedent on a bed. Although the decedent was conscious her legs had stiffened with toes turned in and her hands were in a claw-like position with fingers, wrists and elbows bent. She repeatedly cried out ‘I’m dying,’ ‘The sooner I die the better,’ ‘Let me die now,’ ‘I’m in terrible pain,’ ‘Don’t touch my feet.’ When the doctor arrived he found the decedent in a convulsion.
A Staten Island Family Lawyer said that hereafter the defendant arrived at a time when his wife was suffering a second convulsion. According to the doctor’s testimony the defendant was ‘very anxious’; he ‘wanted to help her,’ and urged the doctor to ‘call a consultant.’ When he suggested someone unknown to the doctor the latter suggested ‘I would like to get my own man, if it is possible.’ Thereupon the attending physician called in consultation a second physician who arrived when the decedent was suffering a third convulsion.
When the defendant had completed preparation of the prescription he returned with a family member, a brother-in-law, to the hospital and entered his wife’s room at about 10:30 P.M.. He then delivered the six bottles of ‘pinkish’ medicine to the nurse then on duty who placed them on a window ledge with other medicine and promptly administered to the decedent the contents of one of the bottles. Four hours later at 2:30 A.M. the nurse next on duty administered to the decedent the contents of the second bottle of medicine which medication is claimed by the People to have contained the strychnine which caused decedent’s death. At 3:00 A.M. the decedent suffered a convulsion. She died at 4:00 A.M..
A Staten Island Child Custody Lawyer said that after directing the removal of the body to the hospital morgue the attending nurse disposed of the six bottles which had been brought by the defendant to his wife’s room two of the bottles being empty, the remaining four bottles being full. The disposal thus made of the six bottles was in accord with usual hospital practice where special medication is prescribed for a patient. It is not claimed by the prosecution that the disposal thus made of the bottles was in any way dictated by the defendant. As no chemical analysis was ever made of the contents of any of the six bottles there was no direct proof that any one of them contained strychnine.
The body of the decedent, which had been buried, without embalming, was exhumed thereafter, when a post-mortem examination revealed that her organs contained 3.7 grains of strychnine an amount three times the minimum lethal dosage. This was witnessed by her family.
Omitting reference to evidence introduced by the People to establish that the defendant had a pecuniary motive for bringing about his wife’s death; that prior to and since his marriage to the decedent, without being in divorce, he had enjoyed with another woman a friendship which was something more than platonic; and that consciousness of guilt was established by his alleged false statement on the date of his arrest that he had not gone to the drugstore on the night of the even.
The trial judge charged ‘In order for the prosecution to prevail in this case you must find beyond a reasonable doubt that the strychnine poison from which she allegedly died was taken at the hospital and at no other place; for if the prosecution has failed to satisfy you beyond a reasonable doubt that the poison was administered to her after the pinkish medicine was brought to the hospital, the defendant must be acquitted.’
In that state of the record where the judgment of conviction rests upon the jury’s adoption of one of two conflicting views expressed by experts upon a decisive issue of fact we cannot say that the verdict of the jury was not influenced to defendant’s prejudice by permitting the introduction of evidence implying that defendant may have been guilty of killing his mother-in-law as well as his wife.
Thereafter when the decedent’s family member, her sister was called by the People it was brought out by her testimony that after the defendant and the decedent were married in 1940 they came to live in the apartment occupied by the decedent’s mother. It also appeared that the mother died in August, 1941 about eight months after the defendant and the decedent came to live with her. In the course of the sister’s examination she described how on the day after her sister had been taken to the hospital, and after the consultation of three doctors had taken place she had seen one of the doctors deliver to the defendant a prescription and that she then left the hospital with the defendant.
In view of prior emphatic instructions by the court relating to references to the decedent’s mother and her death, the jury may well have gained the impression that there was something about that particular subject which, under the court’s ruling, was not for their ears. However, there came a time when the District Attorney requested a conference with the court. Thereupon, in company with opposing counsel, and after the jury had been excused from the room, the attorneys approached the bench for conference with the court. When that conference had ended and the jury had returned and without further explanation at that time from the court the witness was questioned about a conversation she had with the defendant on the day after the decedent’s funeral. Counsel for the defendant objected to that line of inquiry and took an exception when the court still without explanation overruled his objection.
At the point in the examination counsel for the defendant again objected to the testimony. When his objection was again overruled he took an exception. The court then directed the District Attorney to ‘start all over again’.
Attempt to justify admission of that testimony as evidence of a consciousness of guilt must fail. There was here no concealment of crime; too many other explanations for defendant’s refusal or disinclination to consent to an autopsy render it quite speculative as proof from which the fact of a guilty conscience may be deduced. In any event, the danger of undue emphasis being attached to the testimony outbalances any legitimate probative force it could have had. The vice of the testimony, with special reference to the decedent’s outcries ‘Don’t touch my feet’, was that in the light of other evidence that such outcries were characteristic symptoms of strychnine poisoning it implied, and the jury were permitted so to conclude, that the decedent and her mother with both of whom the defendant had lived had died of strychnine poisoning.
While no judge is to be confined to the use of any precise verbiage, it is our thought that to define reasonable doubt by use of such characterization was not conducive to a fair and impartial consideration of the evidence.
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