I think the judgment of conviction should be reversed and that the defendant should have a new trial, for error in the admission of testimony relating to declarations made by Barnet to his physician of his having received through the mail Kutnow powders, of his having taken a dose of them and of his condition being due to that fact. In any view, such evidence was quite incompetent and, of course, prejudicial to the defendant. With respect to the evidence relating to the death of Barnet, with some hesitation, I have reached the conclusion that it was admissible, within the recognized exceptions to the rule, which excludes proof by the prosecution of another crime. Unless the evidence was relevant to connect the defendant with the commission of the crime charged in the indictment, it was immaterial and its effect could not have been other than prejudicial to his case. But it is well established that evidence of facts, which show, or tend to show, the commission of another crime, is not for that reason inadmissible against the defendant, if they tend to prove his guilt under the indictment. If these other damaging, or criminating, facts throw any light upon motive, or intent; if they establish the absence of mistake, or accident; *Page 352 if they exhibit a scheme, involving the commission of several crimes; or if they may become a means of identification of the person charged with the commission of the crime on trial, they become admissible for the purpose.
The theory of the prosecution was that the defendant had caused Barnet's death by poison from motives of jealousy and had attempted to poison Cornish from motives of hatred provoked by personal conflicts and quarrels. It is plain that there could be no common motive and the theory of the prosecution could only become serviceable, if the evidence relating to the commission of a former crime would identify the defendant as the common perpetrator of both crimes. In my opinion, all of the exceptions to the general rule of evidence mentioned may be eliminated, as of useless consideration, except that which makes all legal evidence admissible for the identification of the defendant. I cannot perceive its relevancy for the purpose of proving intent, or the absence of mistake, or accident. The defendant was shown to be familiar with the use of chemicals and to have all the opportunities to concoct the particular poison, which Cornish received through the mail and from the taking of which Mrs. Adams subsequently died. If the evidence showed that he had sent this bottle, containing its poisonous compound, to Cornish, the felonious intention would be evident and there would be no room for the idea of ignorance, mistake, or accident. It would be unnecessary to enter upon the proof of the other criminating facts, in order to supply those elements of a case. Neither is it conceivable that the Barnet evidence would be admissible to prove a scheme, which involved the commission of further crimes in connection with the killing of Barnet. There was no pretense of that. But there may be sufficient in the circumstances of Barnet's death to furnish support for the theory that the same person committed both crimes and, with other circumstances testified to, to tend to an identification of the defendant. The rarity of the deadly drug used, within a few weeks, in both cases; its concealment in the same kind of powders, as taken by Mrs. Adams and as found in Barnet's *Page 353 room after his death, and the use of the mail by the sender of the poison, in connection with the evidence showing, or tending to show, that defendant made use of the names of Barnet and of Cornish, in the hiring and use of private letter boxes, for various purposes, including the procuring of patent medicines, all of these facts would, if competently proved, have a tendency to show a unity, or similarity, of mental plan and operation, and bear upon defendant's identification, however inconclusive in themselves. While, for the reasons I have briefly assigned, I think the evidence relating to Barnet's death was not inadmissible for the prosecution's case, the admission of the testimony of the physicians, as to what Barnet told them about the reception and the taking of the powders, was distinct error and, in view of the nature of the case made, one which cannot be overlooked. It was objectionable as being hearsay evidence and as not told for the purpose of treatment. Without that testimony there was no evidence that Barnet received any Kutnow powder containing the poisonous admixture through the mail, or that he took any of it, except as might be inferred from the autopsy performed upon his body some time after Mrs. Adams' death. If those material facts should be competently proved upon another trial, I am of the opinion that the circumstances of Barnet's death would be within the province of the jury to pass upon as determining, in connection with all the other facts and circumstances, whether the same person poisoned Barnet and attempted to poison Cornish, and whether they pointed conclusively to the defendant as the criminal agent.
As to the handwriting evidence, I concur with Judge WERNER'S construction of the statutes; but, while conceding the admissibility of opinion evidence as to handwriting, I am, nevertheless, indisposed to concede to it such evidentiary character and strength as, like a fact, to constitute a link in the chain of circumstantial evidence, upon which a capital conviction shall depend. Such evidence is entitled to be considered by the jury as corroborative of other evidence, connecting the defendant with the commission of the crime. *Page 354
In view of the responsibility imposed upon this court in capital cases, I think that the circumstances relied upon to support the defendant's conviction should be such as, when considered with the opinion evidence, to convince the mind of its absolute correctness.
Judgment of conviction reversed and new trial ordered. Opinion by WARNER, J., with whom BARTLETT and VANN, JJ., concur; O'BRIEN, J., in mem.; PARKER, Ch. J., GRAY and HAIGHT, JJ., concur in result, and dissent only as to the admissibility of the evidence tending to prove the poisoning of Barnet; PARKER, Ch. J., and GRAY, J., writing; HAIGHT, J., concurring with PARKER, Ch. J.