to produce abortions and miscarriages, were also an irritant poison, and, if taken in sufficient quantities, would produce the same conditions found in the stomach and intestines, and would occasion the same symptoms of vomiting and purging as were manifested by the deceased. It was further made to appear, and as stated by Wharton & Stille in their work on Medical Jurisprudence, that oil of savin "has a strong, peculiar and heavy odor, and a nauseous, resinous, and bitter taste. When administered in large doses, signs of irritant poisoning are manifested, such as heat at the stomach, epigastric and abdominal pains, vomiting of greenish matters, abundant and often bloody stools, flow of saliva, and, in fact, the well-known signs of gastro-intestinal irritation," and that "after death there are found, in general, undoubted evidences of inflammation of the stomach and intestines," and that the strong odor is quite distinct in the vomit and urine. True, the autopsy did not disclose any condition of pregnancy, but the physicians testified that the deceased might have been ten or fifteen days in pregnancy, and all indications thereof removed by an accelerated menstrual flow.

Upon this evidence it is contended by the state that it is demonstrated that the deceased died of mercurial poisoning, and that the poison was administered to her by the defendant at about noon on the 27th day of November, when he stood at the doorway of, or went into, the room where the deceased was lying on the bed, and by then and there dropping a bichloride of mercury tablet in the glass of water standing on the sewing machine near her bed. It is conceded by the state that, if the defendant did not then place bichloride of mercury in the glass of water, there is no evidence to show that he administered any poison to the deceased. It is also conceded that he did not then go into the room or to the trunk where the mercurial tablets were, but it is conjectured by the state that he took some of them from the trunk when he arose that morning and before he went to work, or the night before, and had them about his person when at noon he returned from work for his noonday meal. To convict the defendant of causing the deceased's death by poisoning, the state was there

fore required to prove that the deceased died of mercurial poisoning, and that such a poison was administered to her by him. There being no trace of mercury found in her body, the fact of death caused by mercurial poisoning was sought, and is claimed, to be established by other proven factsthe inflamed and congested condition of the membranes and tissues of the stomach and intestines, and the symptoms of vomiting and purging and of pain manifested and complained of by the deceased. But upon the evidence adduced by the state such proven facts equally well point to the cause of death by an irritant poisoning of a drug used to produce abortion. The proven facts of the state equally well point to two hypotheses, one consistent with the defendant's guilt, the other with his innocence, in which case the circumstantial evidence of the fact sought or claimed to be established is, if not valueless, insufficient to support it.

Even though it should be assumed that the cause of death by mercurial poisoning was sufficiently established, yet it was also necessary to show that the defendant administered the poison. Again, that fact was also sought, and is claimed, to be established by other proven facts. The proven facts which it is claimed by indirection logically or naturally demonstrate the factum probandum-the administering of the poison by the defendant-are: Bichloride of mercury tablets were found in the trunk to which the deceased and the defendant had equal access, and which were there for more than a year, and conceded not to have been procured for any wrongful or unlawful purpose; the deceased, sick, very delicate and pale, was lying on the bed with her eyes closed; the defendant, when he returned from his work, entered the kitchen, inquired where the deceased was, and, on being told that she was lying down in the adjoining room, went to the doorway of or into her room, looked at her, walked away, sat down in the kitchen, ate his lunch, and went back to work; after the defendant was at the doorway or in the room, the deceased drank from the glass of water procured by herself, whereupon she became worse, and at about two o'clock began

38 Utah-4

vomiting and purging, and complained of pain. There is no logical nor natural connection between the proven facts and the factum probandum, the dropping of the mercurial tablets in the glass of water by the defendant while he was at the doorway or in the deceased's room. This is not a case where a person without ailment or complaints of pain, or in an ordinarily normal condition, drinks or eats something, and is suddenly or shortly thereafter made sick and caused to suffer pain. The deceased, when she lay down on the bed, and before it is claimed that the defendant placed the poisonous tablets in the glass, was from some cause, according to all the evidence, a very sick woman, and was in a weak, pale, and trembling condition. Her symptoms of pain, of vomiting and purging, are equally attributable to causes other than that of her drinking water out of the glass after the defendant was at the door of, or left, her room. The defendant's going to the doorway, or in the deceased's room under the circumstances disclosed is not an unusual nor a suspicious circumstance. It is so usual and natural that it does not even support nor agree with the hypothesis of guilt, and much less is not inconsistent but wholly consistent with innocence.

The facts that the defendant took bichloride of mercury tablets from the trunk, and that the deceased drank mercurial or other poison from the glass themselves rest, not upon any proven facts, but upon mere inferences. That is the fact that the deceased drank poison from the glass of water is itself only an inference deduced from the facts that after she drank from the glass she became worse, began vomiting and purging, and had pain. Yet from such inferences it is sought to infer the further fact, the factum probandum, the placing of the tablets in the glass of water by the defendant, and thus we have an inference deduced, not from a proven fact, but from a mere inference, and have an inference upon an inference.

I cannot yield assent to the proposition contended for by the state that "as to the poisoning it was necessary on the part of the state to satisfy the jury of two things: First, that the defendant had possession of, or access to the poison; sec

ond, that he had the opportunity to administer the poison to Mary Vance," the deceased. Nor could I yield assent, if added to these two, were the third, that the deceased died of mercurial poisoning. That is to say, it is not sufficient to sustain a charge of murder by poisoning by the mere proof of facts that the deceased died of poisoning, that the defendant under no suspicious circumstances merely had poison in his possession, or access to the poison, and that he had the opportunity to administer it to the deceased. Bichloride of mercury, carbolic acid, and other antiseptics are not unusual articles found in many households for antiseptic or mechanical purposes. If the contention of the state is sound, should the death of one member of a family having such poisons about the house be caused by such kind of poisoning, every other member of the family who had possession of, or access to, the poison, and had the opportunity to administer it to the deceased, might properly be found guilty of murder. Courts do not, and should not, sustain convictions on such evidence alone. We have been referred to no case supporting such a contention of the state. Neither the case of Zoldoske v. State, 82 Wis. 580, 52 N. W. 778, nor the case of Commonwealth v. Danz, 211 Pa. 507, 60 Atl. 1070, cited by the state, supports it. Those cases are much stronger in their facts than is the case in hand. In the first it was shown by direct evidence that the candy containing the poison and which was eaten by the deceased was given to her by the defendant; in the other, that the defendant put the poison in the deceased's cup of coffee. So are the cases of the State v. Van Tassel, 103 Iowa, 6, 72 N. W. 497, where there was also some direct evidence that the defendant substituted a poisonous drug for the medicine left for the deceased by a physician, State v. Best, 111 N. C. 638, 15 S. E. 930, where it was shown by direct evidence that flour, bread, and dough from which the deceased had eaten was in the possession of the defendant and contained poison, and that it was administered to her by him, and in the case of Speights v. State, 41 Tex. Cr. R. 923, 54 S. W. 595, where the defendant administered poisonous water to the deceased out of a dipper. A person having bichloride of

mercury tablets about the house, conceded not to have been procured and kept under any suspicious circumstances, nor for any wrongful or unlawful purpose, is one thing. One mixing a deadly poison with candy, bread, water, or other substance, or substituting a deadly poison for medicine left for a patient by a physician, and giving it, or causing it to be given to another, or who gives to another candy, bread, water, or other substance, containing a deadly poison, to be eaten or drank, is quite another thing. Having bichloride of mercury tablets about the house is not an unusual thing. Mixing poison with bread, candy, or other substance to be caten, or drank, is not only a very unusual thing, but is also inconsistent with innocence. Besides, in the cases referred to, there were in some of them other facts and circumstances and in others admissions, confessions, and conduct of the suspected parties which were not only consistent with their guilt, but which were also wholly inconsistent with their innocence. The case here on the facts is no stronger than the cases of State v. Bertoch, 112 Iowa, 195, 83 N. W. 967; State v. Nesenhener, 164 Mo. 461, 65 S. W. 230, and Pitts v. State, 43 Miss. 472, where the evidence was held insufficient to support a conviction.

The deceased made two written dying statements, one written by her sister, the other written by an assistant county attorney, and signed by the deceased in his presence, and in the presence of a deputy sheriff. In neither statement did the deceased make any reference to any fact or circumstance on the subject of poisoning. Both statements were confined alone to the transaction of the defendant's striking and kicking her on the 26th day of November, and to the things then said and done. After she had signed the statement in the presence of the attorney and sheriff, and after they had departed, the latter called the former's attention to the fact that the deceased in her statement had said nothing on the subject of poisoning, and suggested that they return and ask her about it. They did so. In response to questions asked her on such subject she made the oral statement heretofore referred to. I, of course, think the evidence of such state