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Bichloride of mercury

The main contention of the defense in the D. C. Stephenson trial was that Madge Oberholtzer died as the result of ingesting six bichloride of mercury tablets.  The prosecution contended that Madge's cause of death was infected bite marks resulting from Stephenson's violent rape of Oberholtzer.  According to Madge, as stated in her dying declaration, Stephenson raped her on an Indianapolis to Chicago train.  He "chewed me all over my body...chewed my breasts until they bled...mutilated me all over my body."  The next day, in an attempt to commit suicide, Madge secretly bichloride of mercury tablets and "only took six because they burnt me so."  Whether the bites or the poison, or a combination of the two, caused Madge's death was hotly contested in the 1925 trial.

Appellant's Proposed Instruction No. 83: "The court instructs you that if you should find Madge Oberholtzer had been assaulted and raped or had been assaulted and beaten with intent to rape, by the defendants, or either of them, and that said act by the defendants had already been completed and ended, and if you find that no attempt was being made by the defendants, or either of them, to repeat said act or acts, and if you further find that said Madge Oberholtzer under such circumstances voluntarily swallowed a fatal dose of bichloride of mercury poison with intent to take her own life, because she felt aggrieved on account of said prior acts of the defendants, or either of them, and that said bichloride of mercury caused her death, then you would not be warranted in finding the defendants guilty, and you should find them not guilty." [The trial court refused to give instruction No. 83, and the Indiana Supreme Court found no error in its refusal to do so.]

We should think the same rule would apply if a defendant engaged in the commission of a felony such as rape or attempted rape, and inflicts upon his victim both physical and mental injuries, the natural and probable result of which would render the deceased mentally irresponsible and suicide followed, we think he would be guilty of murder....To say that there is no causal connection between the acts of appellant and the death of Madge Oberholtzer, and that the treatment accorded her by appellant had no causal connection with the death of Madge Oberholtzer would be a travesty on justice. [Indiana Supreme Court, State v Stephenson]

Only one argument by which the state sought to sustain the verdict of guilty under the first count of the indictment remains for consideration, viz., that one who inflicts a wound is held to contemplate and be responsible for the natural consequence of his act, and that at the time appellant committed the rape, or the attempted rape, he was bound to anticipate deceased's act of taking bichloride of mercury. I do not find any evidence to justify a finding that the taking of poison by deceased was such an act as a reasonable person under similar circumstances would have committed or was a natural consequence of the rape (or attempted rape, or the bite made during the same) which the appellant was bound by law to contemplate. [Justice Martin, dissenting in State v Stephenson]

The evidence showed only three possible causes of death, the wound on the breast, the poison, and the withholding of aid. The evidence connecting the wound with the death is, at the best, strikingly weak and unsatisfactory. The jury reasonably might have found that it was not a factor. Both the per curiam and the individual opinions agree that, in order for the appellant to be legally responsible for the taking of the poison by his victim, it was necessary that the jury find that the natural and probable consequence of appellant's mistreatment of Madge Oberholtzer was to render her mentally irresponsible, and also find that while thus mentally irresponsible, and as a result thereof, she procured and swallowed the poison. Under the foregoing test, the jury reasonably could have concluded that Stephenson was not legally responsible for Madge Oberholtzer's act of taking the poison. Further, both the per curiam and the individual opinions agree that the alleged acts of Stephenson in refusing or withholding aid cannot be considered a part of the offense of murder in attempted rape. In view of the foregoing, it is clear that the defendant was entitled to have the jury understand that he could not be convicted on the charge of murder in an attempted rape unless the jury should find (1) that the wound, with the resulting infection, caused death; or (2) that the defendant was legally responsible for the taking of the poison, and that death was caused by the poison; or (3) that the defendant was legally responsible for the taking of the poison, and that the death resulted from the concurring effects of the wound and the poison. [Justice Treanor, dissenting in State v Stephenson]

Testimony in State v Stephenson
What was the immediate cause of the death of Madge Oberholtzer?

Dr. Virgil Moon:  In my opinion, the immediate cause of death was an infection carried through the blood stream, localizing in the lung and in the kidney, particularly in the kidney. That was the immediate cause. There were other and contributing causes.

After she had lived twenty-five days from the time she took the poison, to-wit, until April 11, say, it is your view that she should have recovered if complications had not set in, is that right?

Dr. Virgil Moon: That is my opinion, sir.

Infected Bite Marks Killed Madge
We got on the train....They took me at once into the compartment. I cannot remember clearly everything that happened after that. I know Gentry got into the top berth of the compartment. Stephenson took hold of the bottom of my dress and pulled it up over my head. I tried to fight but was weak and unsteady. Stephenson took hold of my two hands and held them. I had not the strength to move. What I had drunk was affecting me. Stephenson took all my clothes off and pushed me into the lower berth. After the train had started, Stephenson got in with me and attacked me. He held me so I could not move. I did not know and do not remember all that happened. He chewed me all over my body, bit my neck and face, chewing my tongue, chewed my breasts until they bled, my back, my legs, my ankles and mutilated me all over my body. I remember I heard a buzz early in the morning and the porter calling us to get up for Hammond and Gentry shook me and said it was time to get up...At this time I was becoming more conscious and Stephenson was flourishing his revolver. I said to him to shoot me. He held the revolver against my side, but I did not flinch. I said to him again to kill me, but he put the gun in his grip. [Dying Declaration of Madge Oberholtzer]

   The testimony of the physicians, who were in attendance upon Miss Oberholtzer as their patient during portions of the time after her return from Hammond until her death, and the consulting physicians, by their testimony, showed that the minimum fatal dose of bichloride of mercury is two or three grains; but larger doses are not necessarily more apt to be fatal, but the danger rests upon the amount of poison absorbed and retained; the form in which taken, whether tablets or powder; the promptness of vomiting or purging, efficiency of treatment; the fullness or emptiness of the stomach at the time the poison is taken by way of the mouth. Medical history shows that recoveries have occurred when as much as 500 grains were swallowed; the per cent. of fatalities since A. D. 1910 is about 25 per cent. and as low as 6 per cent. in one hospital. The average time for the life of the patient after having taken the poison in a fatal dose is from five to twelve days. Medical history shows that some patients have died within a few hours after taking the poison, and the longest reported case in medical history is that the patient died the 25th day after taking the poison, and that all reported cases of patients who lived beyond 25 days after taking the poison had recovered; that in a severe case, where the patient survived 29 to 30 days, as did Miss Oberholtzer, after taking the poison, and died, the consensus of opinion was stated that some other factor played a part in causing the death. The action of this poison, if the patient lives more than a few days, expresses itself in the kidneys and causes an acute nephritis of the kidneys to such an extent that there is a failure to secrete urine by those organs. Nephritis, caused by the poison if the patient lives beyond the twelfth day, diminishes, and the kidneys begin a process of repair and resumption of their function, and that medical history shows that it requires five to twelve days for a human being to die if the kidneys are completely out of function. The report of the post mortem upon Miss Oberholtzer in evidence showed that the physician making such examination found an acute nephritis, the effect of bichloride of mercury on the kidney, degeneration of other organs in the liver and heart muscle, irritation of gastro‑intestinal tract, abscess on one of her lungs, recently healed injuries on the surface of her body, four or five on the surface of her chest; one of which showed evidence of previous supporation, which was caused by the entrance of bacteria in that wound. Portions of the liver and kidneys were subjected to examination by Dr. Harger of Indiana University School of Medicine, the result of which, according to his evidence, showed that the injury to the kidney by the poison, which injury was termed nephritis, had almost healed, and that the kidney tissues were in a state of advanced repair; the abscess in the lung contained pus or pus‑forming germs which are carried by the blood stream by which circulation these germs, coming from an infected wound, cause blood poisoning or pyemia; the symptoms of such pyemia are weakness, a rapid pulse, and fever. The post mortem examination showed that the lacerated and recently healed infection over one of her breasts was the only one found from which such pyemia could probably have resulted. The injury made on her breast could have been infected by human teeth, and wounds so made are apt to be infected by bacteria on the teeth and the mouth of the person biting, or such bacteria may be on the skin which are carried in beneath the skin by the injury. The opinion was that the infection in the lungs came from the infected area on the chest, and that the kidneys were also infected by the same bacteria, which, on account of the poisoning, would be less able to resist infection by the pus germs. The abscess in the lung, the infection in the blood stream, and the infection in the kidney all tended to prevent recovery, and that it was highly probable that such infection contributed to the death of Miss Oberholtzer; but that she would have recovered from the effects of the mercurial poisoning had she not been so infected by the pus germs coming from the wound on her chest, because the kidneys had already accomplished a large amount of repair sufficient to carry on their function.  [Per Curium opinion of the Indiana Supreme Court]
Mercury Tablets Killed Madge
I said to Stephenson to give me some money, that I had to buy a hat. Shorty gave me $15 at Stephenson's direction....Shorty waited for me while I went into a store close to the hotel to get a hat. This was a small black silk hat similar to one I have-it cost $12.50. When I came back to the car I said to Shorty to drive me to a drugstore in order I might get some rouge. We drove to a drugstore near the Indiana Hotel and I purchased a box of bichloride of mercury tablets. I put these in my coat pocket. Then we went back to the hotel....I waited awhile until I thought he was asleep, then I went into room 417. Gentry stayed in the room with Stephenson. There was no glass in room 417 so I got a glass in 416 and took the mercury tablets. I laid out eighteen of the bichloride of mercury tablets and at once took six of them; I only took six because they burnt me so. This was about 10 A.M. Monday, I think....[Gentry] said to me what was wrong that I looked so ill. I replied, "Nothing." He said, "Where is your pain?" and I said it was all over. He said I could not have pain without cause. I said to him, "Can you keep a secret?" He said "Yes." I said, "I believe you can," and then I said to him that I had taken poison, and said to him not to tell Stephenson I was very ill and almost delirious at this time. I had vomited blood all day. When I said to him I had taken poison he turned pale... [Dying Declaration of Madge Oberholtzer]

   The fact that deceased, by reason of the bite, may have been more susceptible to the fatal effects of the poison does not render the bite the proximate cause of death unless the taking of the poison was the natural result of the bite.

  Dr. Kingsbury, one of the principal witnesses for the state, testified that the lacerations on deceased's left breast became infected. He was asked, "Were they infected at the time of her death?" and answered, "No they had healed, there were scars there." He was asked the nature of the infection, and replied, "oh, the ordinary pus producer, ordinarily staphylococci, sometimes‑‑ it is nearly always responsible for pus infection." The trained nurse who attended deceased testified that she sterilized the abrasions, and that they healed up. The evidence shows that the bite on deceased's breast was not a serious wound calculated to destroy or endanger life, nor was the infection resulting therefrom shown by the testimony of any witness to have been serious enough, of itself, to destroy life. It therefore cannot be contended that death resulted directly from the bite; but it is contended by the state that such bite and infection is a responsible cause of death, for the reason that deceased might have, or would have, recovered from the effects of the poison which she afterwards took, except for the existence of the infection from the bite. There is opinion evidence by physicians, called as expert witnesses for the state, that deceased might have, or would have, recovered from the mercurial poisoning had it not been for an infection which developed, and which may have resulted from the previously inflicted bite.

  This opinion evidence must be considered in connection with the other medical evidence, not in conflict therewith, regarding the bite and the infection. The evidence of the state does not establish the fact that the abscess in the lung or the infection in the kidney discovered by a post mortem examination was the result of infection from the bite on the breast. Dr. Warvel, witness for the state, testified: "I would not say certain that because there was an abrasion on one of the breasts and an abscess in one of the lungs that it would necessarily follow that one communicated germs to the other unless I could prove there was no other avenue of infection." It was undisputed that the deceased had recently suffered from the flu (influenza), from which such an abscess might have resulted.

  Physicians as expert witnesses for the state testified that an infection could be carried from a surface wound to the lung by the blood stream; that such a process was known as septicemia, or infection of the blood (blood poisoning), and results in the development of pyemia or localization of the infection; and that such a condition would be accompanied by a marked rise in the temperature of the patient and could be definitely established by a microscopic examination of the patient's blood. The detailed record of deceased's temperature from March 17 to April 14, inclusive, as given by the nurse from her records, shows a gradual and not a marked rise of temperature, and although it clearly appears that the patient's blood was tested and examined, there was no testimony that the blood ever showed a condition of septicemia caused by the staphylococci infection on the breast. It thus appears that while the state proved that an abscess on the lung might or could result from an infection resulting from a bite on the breast, it did not establish as a fact that the infection of this decedent's lung was carried by her blood stream from an infected breast...

[Judge Martin, dissenting.]

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