tiff's witnesses, testified that no accurate opinion could be given of the cause of death, and that the symptoms were compatible with various conditions. He endeavored to cast a doubt upon the reliability or the correctness of the results of the autopsy and of the chemical analysis of the contents of the stomach. In connection with the possible existence of kidney disease, he sought to show that, with a constitutional idiosyncrasy or intolerance for morphine, the effect of an ordinary dose of morphine would be to intensify the action of the drug, and to produce symptoms similar to those observed. Without, however, discussing these theories in detail, and while fully alive to the fallibility of the opinions of medic 1 practitioners, and being conscious of the inexactness of medical practice as a science, I am convinced that the jury could not have come to any other conclusion upon this evidence than that the deceased came to her death by morphine poisoning. While, undoubtedly, cases of death do occur of which an autopsy may not reveal the causes, and while the evidence of witnesses did show that there were instances of death from other causes than that of morphine poisoning where some symptoms were exhibited similar to those observed in this instance, the group of these peculiar symptoms, which are admitted to belong to narcotic poisoning, considered with the proof of a constitutional tolerance for the drog, and with the positive testimony as to the discovery of morphine by subsequent chemical analysis, gave a basis for a judgment as to the cause of death which I see no way of doubting or of disturbing. I may add that, in my opinion, which I derive from a careful consideration of the professional evidence given, the thecries of uræmic poisoning, or of the hemorrhage in the brain suggested, were contradicted either by the actual combination of symptoms or from the absence of essential symptoms. I may instance that, as I understand it, the fact of the deceased being able to speak with clear articulation and rationally, when her roommates returned and awaked her from her sleep, is significant, and something which is not deemed possible where a person is attacked with uræmic coma, or by hemorrhage of the pons in the brain, while quite possible in the first stage of morphine narcosis. The sense of exhilaration first noticed, from her remark about having such pleasurable dreams, would not seem to comport with any disease of the brain, or with uræmic poisoning. That symptom, with the comatose condition ensuing, with the symmetrical contraction of the pupils of the eyes to an almost imperceptible point, and their lack of sensitiveness, and with the peculiar respirations, were all symptoms usually found together in narcotic poisoning. The determination as to the cause of death can rest, in my judgment, safely upon a group of symptoms which invariably accompany and characterize poisoning by opium or morphine, upon the subsequent revelations by autopsy and analysis, and upon the previous constitutional conditions of the deceased, all of which together pre

clude a diagnosis of any other physical disturbance differing from that made.

The question of what was the cause of death was one the determination of which, upon sufficient evidence, belonged to the province of the jury, and the statement of my opinion has been made solely to express a conviction that the necessary prior determination of that question by the jury was altogether correct. We have no right, and there is no reason, to interfere with the judgment on this branch of the case.

I come now to the next question, which was for the jury to determine, and that was whether the defendant was guilty of the charge that he had administered the morphine poison to the deceased with the intent to kill her. The evidence upon which this question turned was, as I have said, circumstantial, or indirect, and it will be necessary at some length to review it, in order to appreciate its probative force as a whole.

The defendant had formed the acquaintance of the deceased, in the summer of 1889, at Ocean Grove, N. J., where her family were residing. When they moved to the city of New York for the winter, the acquaintance continued, and on February 8, 1890, obtaining a permission from her mother to take her to see the stock exchange, he went with her before an alderman, and they were married under the assumed names of Charles Harris and Helen Neilson. He was at the time pursuing his studies as a medical student in that city, and he continued to visit the deceased until her family returned, in May following, to Ocean Grove. He followed them there soon afterwards. Mrs. Potts, the mother of deceased, testifies that there was a falling off in his attentions to the deceased, and a marked change appeared in his manner towards her, which seemed to worry her. A young friend of the deceased-Miss Schofield-coming to visit her in June, upon the occasion of a walk, the defendant informed her, because, as he said, the deceased had insisted upon it, that they were secretly married. Upon Miss Schofield's saying she should beg the deceased to tell her mother, the defendant became very angry, and said she should not do so; that his prospects would be utterly ruined; and that he would rather kill her (the deceased) and himself than have the marriage made public, and expressed the wish that "she [the deceased] were dead, and he were out of it." Later in the day he went out with the deceased; was absent for several hours, and, upon their return to the house, she appeared pale and ill, and went directly to her room. Shortly after this, in the latter part of June, she went to Scranton, Pa., and visited an uncle, Dr. Treverton. While there Dr. Treverton discovered that she was with child, and treated her accordingly; but subsequently was obliged to remove from her a foetus of five months' formation, and which had been dead for some time. After the operation, she recovered her health completely, and returned, in the first part of September, to Ocean Grove. While she was at Dr. Treverton's, and about the end of July, the de

fendant came, upon a telegram from the deceased and a letter from Dr. Treverton, and remained a few days. The operation for the removal of the fetus was made while he was there. Dr. Treverton testified to conversations with the defendant upon the occasion of his visit, in which defendant said he had performed two operations upon the deceased, and had thought every thing was removed. He boasted of his previous intrigues with other women, and of his success in not having had any trouble before. His remarks are unnecessary to be wholly repeated, from their revolting depravity; but, in the course of them, he said he had been "secretly married to at least two young ladies," and by one had a fine child. During the same visit he had a conversation with the witness Oliver, then visiting the Treverton's, in which he spoke boastingly of his experience with women, and of the facility with which he could gain sensual control of them. He said that in two instances he had to overcome their scruples by a secret marriage ceremony, but was ready to stand by them. Upon the witness asking him how he could stand by both, he auswered, in substance, that there would be no trouble, as the first one was glad to be rid of him; and he went on to tell the circumstances of their relations, and, as the final result, that, after a child was born, the woman expressed her disgust with him, and wanted to see no more of him. Toneither Treverton nor Oliver does it appear that he admitted a contract of marriage with the deceased. While the deceased was at Treverton's her mother joined her, and then learned of the secret marriage, and what had happened.

In the first week of September the defendant was at an hotel in Canandaigua, N. Y., under an assumed name, with a young woman named Drew. His conduct towards her was demonstrative in its affection, and her friends there, discovering their illicit relations, compelled him to leave. During his stay, witness Latham overheard a conversation between him and the Drew woman, in which he advised her to marry some old gentleman with lots of money, and, upon her asking what if she did, he is said to have replied, "Oh, we can put him out of the way;" and upon her inquiring how, he further said: "You find the old gentleman, and we will give him a pill. I can fix that." After the return of the deceased and her mother from Scranton they met the defendant in New York city, and lunched together. They talked about the secret marriage, of which the mother had been informed at Scranton. He offered to satisfy Mrs. Potts of its legality, and took her to the office of his lawyer, Mr. Davison. The defendant told her he had burned the original marriage certificate, but sent for and obtained a copy from the records, and, upon Mr. Davison's suggestion, attached to it an affidavit, made by him, stating his marriage with the deceased under assumed names before an alderman. During a conversation at the office he asked if Mr. Potts knew of the marriage. She said it was no time to tell him then, and asked him if he

had told his mother. He said, "No, he would not have his family know of it for half a million of dollars.". He suggested to Mrs. Potts that if she was so unhappy about the marriage, it could easily be broken, and no one would be the wiser. Upon her expressing herself in indignant refusal of the suggestion, and insisting upon a "ministerial" marriage, he objected to it at the time, alleging as an excuse that it would connect her name with certain club scandals in which he was involved at Asbury Park. He promised, however, to have the ministerial marriage at any time in the future that Mrs. Potts should say. He expressed his gratification at her not pushing the matter of the marriage at that time; that, if she had, he would have been obliged "to leave everything, and go west." Upon that occasion he suggested putting the deceased at Miss Comstock's school, to fit her, as he said, for the society in which they were to move, to which suggestion Mrs. Potts acceded. At his request she promised to write to Dr. Treverton, and express her satisfaction with the marriage, and to prevent the doctor from making any trouble for him at the medical college, as he had all he could do, he said, to meet the charge of keeping a disorderly house. Upon leaving the lawyer's office, they joined the deceased at the ferry; he crossing with them. The deceased learned of her mother's being satisfied about the marriage, and she seemed to be made very happy in consequence. In December the deceased was placed at school, and, as a friend of the family, the defendant received permission to visit her. During her visit to her home in the holidays he wrote to deceased, asking that no announcement should be made of their engagement at this time. In reply to a letter from Mrs. Potts, in the first week of January, he wrote, suggesting that there should be no further question of marriage for two years longer, and that her daughter should take a collegiate course. About January the 18th or 19th Mrs. Potts wrote to defendant, expressing herself strongly upon the hardship of her daughter's position, with a delay of three years as an unacknowl edged wife, and for no apparent reason; that her daughter's illness at Scranton had been commented upon; that, if he should die, it would be humiliating to publish a marriage under the circumstances of its contracting; that her husband might meet Dr. Treverton, and be told of the illness at Scranton, and of the doctor's doubts about a marriage. She concluded by asking him to keep his word, and to do as he has promised her, and demanded of him to go, upon the anniversary of the first marriage, February 8th, and be married before a minister of the gospel, and give her the certificate to hold, which she would make public at such time as she chose. To this he replied that he would do all she asked of him, if no other means of satisfying her scruples could be found. On Tuesday, January 20th,-a day after he received Mrs. Potts' letter,-the defendant went to the shop of McIntyre & Sons, druggists, in New York city, and at first ordered some capsules of sandal wood to be

put up. Upon the clerk's mentioning that it would take some time, he said he could not wait. He then handed the clerk a prescription, asking if it would take long to prepare, and, upon learning that it would take a few minutes, waited for it. It called for twenty-five grains of sulphate of quinine and one grain of sulphate of morphine, mixed in six capsules, with a direction to take one before retiring. The prescription was put up by the clerk with minute rare, being aided by another clerk, who checked the amount and weight of the morphine, according to a custom adopted where poisons are put up. The box, properly labeled, containing six capsules, each capsule containing one sixth of a grain of morphine and four grains and a fraction of quinine, was taken by him. He never called for the sandal wood capsules. The following day-being Wednesday, January 21st-he was at the school reception, and saw the deceased. The testimony in the case shows that the defendant stated to both coroner and deputy coroner, when shown and asked about the pill box taken from the room of the deceased, that it was the one that he had given to her on Wednesday, January 21st, and be described the prescription as above, stating that he had given it to her for headaches, and that he had given her only four of the capsules. It was also shown by the testimony of several witnesses from the medical college that in the latter part of December and the first part of January lectures were given upon opium and its effects when used feloniously. The sulphate of morphine, contained in wide-mouthed bottles, had been passed around among the students, of whom the defendant was one, and they were al lowed to take it out, and to handle it when they chose. After meeting the deceased at the reception on Wednesday, January 21st, the defendant left for Old Point Comfort, Va., and did not return until a week later. While there, it appears that she wrote to him that the medicine had not relieved her headache, and rather made her worse; to which he replied, advising her to continue taking it. On Saturday, January 31st, deceased, her mother, and the defendant met at the school, and walked together. The deceased seemed perfectly well, and very bright and happy. Mother and daughter returned to the school, and, when in the bedroom of the deceased, she showed her mother the pill box, with one capsule left in it, and remarked she had been taking some capsules that Carl (the defendant) had brought her. She complained of their making her feel ill, and of her dislike to take them. She said she was tempted to toss it out of the window, and then to tell Miss Day, the principal, she had taken it. Her mother advised her to take it, remarking that quinine was apt to make one feel wretched, and that she might have been malarious. Her mother left, and then occurred the scenes of illness and death in that night, which I have before described. The defendant was sent for towards day- | light by Dr. Fowler, who, stating that be believed it to be a most profound case of opium poisoning, wished to learn what

had been contained in the pill box in her room, and which not only was the only evidence of anything like medicine about the room, but which, according to her roommates, was the only medicine in the room that day. The defendant told him what had been its contents, and of his having prescribed the capsules for headache, insomnia, and the like. Dr. Fowler said one sixth of a grain could not produce the condition, and advised him to go at once to the druggist, and to ascertain if the proportions of the drugs had been reversed. He pretended to go immediately, and, when he shortly after returned, stated to Dr. Fowler that the medicine had been prepared exactly according to his prescription. The evidence shows that he did not go to the druggist's that morning, as supposed by Dr. Fowler, nor until 11 o'clock, and after the death, when Dr. Kerr told him to go and try to get the original prescription if he could. During the time he was in the room where the deceased lay he surprised the physician by his composure and general lack of interest or of affection, except when, upon her death, he exclaimed, "My God, what will become of me!" He spoke to the physicians of being "somewhat interested in the girl," and mentioned a possible future engagement to her. He asked them repeatedly if they thought he could be held responsible for the death. To them and to the coroner he said he was merely a friend of the deceased, and pretended hesitation as to her correct given names. In the evening of the Sunday he met Mrs. Potts at the ferry house, and stated to her that her daughter had died of morphine poisoning, and represented it" as the druggist's awful mistake." Mrs. Potts says, when she told him, as the deceased was the mother of his child, she must be buried under his name, that his terror was frightful, and that he said that it could not be; that he would do anything, but that the knowledge of the marriage coming at this time would destroy him; that he would "answer just the same if it was Queen Victoria's daughter, she cannot be buried under my name;"" and he urged as a pretext consideration for the reputation of the school. The coroner met them at the school in the evening. The defendant said he had one of the capsules prescribed for the deceased, and gave it to the coroner, telling him to analyze it, and it would be found all right. Subsequent chemical analysis of it proved the correctness in preparing the prescription. The mother, in order, as she says, to get a permit to take the body, as soon as possible, out of the house, and to New Jersey, represented falsely, as she also admitted, that her daughter had heart trouble. She left the next day with the body. Some days later the defendant stated to Dr. Hayden, in conversation about the occurrence, and when rebuked for writing prescriptions, that "these capsules would not hurt any one, and no jury would convict me, because I have two capsules which can be analyzed, and be found to contain the correct dose." Of the druggist's clerk, witness Powers, at an interview at the store on February 7th, when obtaining some

duct upon the morning of the day of the it death, in professing to have complied with the physician's request to ascertain from the druggist if there could have been a mistake in the proportions of the drugs, when, in fact, he never went there until after the death; his composure and utter absence of affection or of emotion at the ak deathbed of his wife, until, when dead, he expressed only fear of being held responsible; his subsequent endeavor to get from Mrs. Potts the marriage certificate and affidavit; and, I may add, his unintelligible act in reserving for future exhibition and evidence two of the six capsules,-all of this conduct envelopes him with the atmosphere of guilt, and is inexplicable except upon the theory of guilt.

In the chapter of events it was written that their happening would be in such order as to subvert the probable expectations of the defendant. Instead of taking the poisoned capsule among the first, in which case the defendant would have been absent, and thus could not have been associated with the scenes of death, it so happened that it remained as the last one to be taken. Had it been taken earlier, the remaining capsules would have exhibited by analysis the harmlessness of their preparation. Then, too, instead of taking the capsule under the presumably usual circumstances of retiring to bed, it so happened that she took it while her roominates were out for the evening at a concert; and their return, awakening her so soon after going to sleep, enabled them to observe her condition, and to give evidence in that respect, important in aid of the discovery of the cause of death. By the alarm created, the attendance of physicians was secured, through whose observations and efforts further important evidence was added relating to the conditions and symptoms of the deceased. Had these events not occurred, it is probable that she would have passed, in her sleep, from life into death, and the difficulties of detection would have been added to.

It is my opinion, too, that there was strong evidence of the defendant's guilt in the fact that in no way, under the circumstances, do I see that the druggist could have roade such a mistake in putting up the prescription. The three capsules first given to and taken by the deceased were harmless, as were the two retained out by the defendant, and the fourth must have contained the poisonous dose upon which the deceased was immediately seized 'th illness. In no way that I can conceive of could the druggist have reversed the proportions of the drugs in only one capsule. Any mistake of his would have been evidenced in all of the capsules. In the absence of some inconceivable design on the part of the druggist to administer a poisonous dose, his mixture of the sulphates could not but have been substantially correct. One capsule could not have been charged with a dose of three or four grains of morphine, sufficient to take life, while the others were harmless; and those retained by defendant, and submitted to chemical analysis, were shown to be according to the pre

scription. In the case of a mistake by the druggist, either the deceased would have been affected before, or the capsules reserved by defendant would have revealed the mistake if he spoke the truth. In my opinion, the evidence not only warranted the verdict of the jury, but I do not see that any other could have been rendered which would be consistent with the evidence.

Evidence, as I have suggested, is not to be discredited because circumstantial. It has often more reliable elements than direct evidence. Where it points irresistibly and exclusively to the commission by the defendant of the crime, a verdict of guilty may rest upon a surer basis than when rendered upon the testimony of eyewitnesses, whose memory must be relied upon, and whose passions or prejudices may have influenced their testimony. If, taken together, it leads to a conclusion of guilt with which no material fact is at variance, it constitutes the higher form of evidence which the law demands where the life or the liberty of the defendant is at stake, and neither jurors nor the court can conscientiously disregard it. Nor can I think that the conclusion of guilt is unduly influenced by the unusual depravity of nature which the evidence exhibits in the defendant. The evidence seems to overwhelm the accused with his guilt, and leaves the mind unfitted to accept any other belief than that he intended to make away with his wife in order to free the field of his own life, and to escape from the imminent danger of disgrace or punishment, and that with cold deliberation he planned her death by methods which should conceal him as its author. The circumstances preceding and attendant upon the death of the deceased were such as to associate him inevitably with its cause, and to forge the chain which has drawn him to the bar of justice.

The successive steps in this drama seem plainly defined from the secret marriage, on February 8, 1890, up to the tragic close of the victim's life, on February 1, 1891. There were the weariness following upon satiety of desires; the destruction of the fruit of the marriage he had been obliged to contract in order to possess the woman; the continued effort to avoid disclosures which would jeopardize his reputation, and perhaps his liberty, lulling the mother into fancied security and into a satisfaction with a temporary concealment of the marriage; and finally, when pressed, and no longer seeing a way to put off disclosure, he accomplishes the destruction of his wife's life, a few days before the date set for the fulfillment of his promise to have the ceremonial marriage. I think that justice does not demand that this defendant should have a new trial, unless there were errors committed upon the trial in the admission, or exclusion, of evidence, or in the charge of the recorder, which affected any substantial rights of the accused. As his counsel has insisted upon their existence, it is necessary that some of the errors which he pointed out should be carefully considered by us.

He insists that it was error to receive the testimony of Dr. Treverton, a witness