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This is an indictment of the plaintiff in error by a grand jury of Cook county for the murder of his wife, Ellen T. Nordgren. Plaintiff in error was tried in the criminal court of Cook county in February, 1903, and found guilty by the jury of the offense charged against him. The jury, before whom he was tried, fixed his punishment in their verdict at imprisonment in the penitentiary for the term of thirty years. Motions for new trial and in arrest of judgment were overruled, and on October 17, 1903, judgment was rendered on the verdict, and the plaintiff in error was sentenced to thirty years' confinement in the penitentiary. The present writ of error is sued out for the purpose of reviewing such judgment of conviction.

Some of the salient and material facts disclosed by the evidence are as follows:

Plaintiff in error, John Nordgren, was married to the deceased, whose maiden name was Ellen Theresa Alm, on August 1, 1896; and one child was born to them, a boy about six years old at the time of the separation between plaintiff in error and his wife, hereinafter stated. The plaintiff in error and his wife were Swedes. At the time of the separation he lived in an apartment at 912 Sheffield avenue or 613 Otto street in the north or north-west division of the city. His business was that of running an elevator in a building on Market street in the business center of the city, and required him to be absent from his home from seven o'clock in the morning to about six o'clock in the evening. After their marriage they lived together about six years. They separated from each other on August 11, 1902.

The evidence in the record is quite clear and conclusive that, for several years before their separation, the deceased, Mrs. Nordgren, was given to the use of intoxicating liquor, and was in the habit of getting drunk. There is also testimony to the effect that she was guilty, during the absence of her husband, of illicit intercourse with other men. The plaintiff in error was a witness upon the trial in his own behalf, and the State called out from him upon his cross-examination

the statement that his wife had confessed to two acts of adultery to him. His statement in this regard is confirmed by other testimony in the record. The evidence also shows that. the plaintiff in error was kind and indulgent to his wife, and tried to induce her to quit her bad habits, but without avail. On August 11, 1902, he came to his home in the evening after the close of his day's work, and found his wife intoxicated, and at the supper table she seized a fork, or, as some of the evidence tends to show, a butcher's knife, and tried to stab him with it. After he had put his boy to bed on that evening, she came to the bedside, and thereupon he took the boy, and left the house, and went to the house of a neighbor where he remained for several days with his boy. In the meanwhile he procured some one to take his place in the running of the elevator and looked for a new room or living quarters, and finally located at 2810 Seeley avenue. She then left the home where they had been living, and went to live at 328 Wells street, where she obtained a room in an apartment or house kept by a Mrs. Sarah Arnold. She lived in the room, so rented of Mrs. Arnold, for seven weeks before her death, and, during the last three weeks of that time, her room-mate was a woman, named Sina Otness.

On September 19, 1902, the plaintiff in error filed a bill for divorce in the superior court of Cook county against his wife, and issued a summons against her returnable to the first day of the next term of said court to be held on the first Monday of October, 1902. Mrs. Nordgren, the deceased, died on Thursday evening the second day of October, 1902, and the following Monday, October 6, 1902, was the first day of the October term of said court.

W. S. ELLIOTT, for plaintiff in error.

H. J. HAMLIN, Attorney General, and CHARles S. DeNEEN, State's Attorney, (F. L. BARNETT, and F. L. FAKE, of counsel,) for the People.

Mr. JUSTICE MAGRUDER delivered the opinion of the

court:

The charge against the plaintiff in error is, that he caused the death of his wife by giving her whisky which contained strychnine, or some other kind of poison. The only evidence against the defendant is an alleged dying declaration made by his wife. The circumstances connected with the making of this dying declaration, so far as they are disclosed by the record, are substantially as follows:

On October 2, 1902, the deceased was with her roommate, Miss Otness, at different places from eleven o'clock in the morning to four o'clock in the afternoon. The record does not disclose the whereabouts of the deceased from four o'clock in the afternoon until half-past six in the evening. At half-past six in the evening, Miss Otness saw her in their room at 328 Wells street. Mrs. Nordgren and Miss Otness left the room at seven o'clock. At about ten minutes after seven o'clock they met the defendant at the corner of Wendell and Wells streets, on Wells street, one-half of a block north of where they lived. The plaintiff in error asked his wife if he might speak to her, and thereupon Miss Otness left them together. About nine o'clock, or five or ten minutes after nine o'clock, Mrs. Nordgren returned to 328 Wells street. What took place between her and her husband between ten minutes after seven and nine o'clock when she returned to 328 Wells street is not disclosed by any testimony in the record, except that of the plaintiff in error himself. He says that he was with his wife that night about forty-five minutes; that he walked with her up to the corner of Wells and Division streets, and then back again towards Wendell street, or Oak street. He says that she left him about eight o'clock; that he was detained because he missed his car, and then boarded a car bound northward, and went to his home at 2810 Seeley avenue. He says that the reason he spoke to his wife that night was that his boy had told him that she wanted something. He was not permitted by the court to state his conversation with her that night or what

was the subject of such conversation. In his affidavit filed on the motion for new trial he says that what she wanted to obtain from him was a sewing machine, belonging to her, which she had left behind when they separated.

When Mrs. Nordgren returned to 328 Wells street at nine o'clock, she went in and spoke to Mrs. Arnold, her landlady, who was in the kitchen baking cakes. Mrs. Arnold states that she seemed well and in better spirits than usual. After she left Mrs. Arnold, she went to her own room, the door to which was only from eight to ten feet from the door of the kitchen where Mrs. Arnold was. Mrs. Arnold states that, in about three or five minutes after Mrs. Nordgren went to her room, Mrs. Arnold heard a noise, and said that Mrs. Nordgren hollered in some way or made some kind of a noise. Mrs. Arnold went to the room of the deceased, and met her at the door, and says that the deceased said, "I have taken some whisky that my husband gave me to make' me sleep." The deceased then commenced to fall over, and sat down on the edge of the bed, saying, "I am going to die; my heart has stopped beating." Mrs. Arnold then said: "I guess then she said she was going to die, she believed, and then she wanted a doctor, and mentioned Division street, and I said right away, 'I will send for one I know,' and I sent over on Oak street for a doctor I knew, and he couldn't come, and, while the little girl was gone for the doctor, she had a spasm." Mrs. Arnold says that she straightened up and said: “I am going to die and I am not ready to die;" and that she commenced to pray and said: "Pray for me." And she prayed in English and what Mrs. Arnold took to be Swedish. The latter asked her what she had taken, and she said: "The bottle is right down there," and she pointed to the wall in front of the dresser. Mrs. Arnold, being unable to find any bottle, the deceased got off the bed, and reached under the dresser, and got the bottle, and handed it to Mrs. Arnold. The bottle was produced upon the trial, and was identified as the bottle which Mrs. Arnold saw. The deceased then pointed to the bottle, and said that that was what she

took, and said a half-dozen times "that it was one her husband gave her." Mrs. Arnold says: "Sometimes she said that it was something she took that her husband gave her to make her sleep, and then she would say it was whisky that her husband gave her to make her sleep." Miss Otness returned to her room that night at 10:30, and, when she did so, there were present two doctors, a surgeon, and some detectives. She saw Mrs. Nordgren lying on the bed, and said that she had convulsions, but spoke to her; and, when she asked her where she had been, the deceased said she had been out with John, and that they had gone to Lincoln Park. Miss Otness says that this is all that the deceased said to her. Miss Otness did not hear the statement, stated by Mrs. Arnold to have been made by the deceased, to the effect that she had taken whisky, which her husband had given her to make her sleep, although, according to the testimony of Mrs. Arnold, this statement was made by the deceased after halfpast ten when Miss Otness came in. A storekeeper, named Kiefer, and two physicians, named Anderson and Reichman, testified that the deceased stated that she obtained what she drank from her husband. One of the doctors testifies that in his opinion a dose of strychnine was the cause of her death.

Except the statement of the deceased, that she drank whisky, which her husband gave her to make her sleep, there is no evidence whatever that the plaintiff in error gave her any whisky, or any strychnine, or had anything to do with causing her death. There is nothing to show when, where, or how, or in what way the whisky was given to the deceased. The record is silent as to the manner in which the whisky, containing the strychnine, was given to the deceased. It is silent as to the place where the parties were when the whisky was so given, if it was given at all. The proof does not show, that the plaintiff in error had any whisky at the time when he met his wife upon the street on the evening of October 2, or that he went with her to any place where whisky was to be obtained.

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