Vawter v. Hultz

• Decision Date: 12 December 1892
• Citation: 20 S.W. 689,112 Mo. 633
• Parties: Vawter v. Hultz, Appellant
• Court: Missouri Supreme Court

20 S.W. 689

112 Mo. 633

Vawter v. Hultz, Appellant

Supreme Court of Missouri, First Division

December 12, 1892

Appeal from Randolph Circuit Court. -- Hon. John A. Hockaday, Judge.

Affirmed.

Boulware & Turner for appellant.

(1) Where intent is an essential element to constitute the act of defendant unlawful and wrongful, it is competent for defendant, as a witness, to state his intent and motive in doing the act. Nichols v. Winfrey, 79 Mo. 544; Thurston v. Cornell, 38 N.Y. 281; State v Banks, 73 Mo. 592, and authorities cited; Kerrains v. People, 60 N.Y. 221, and authorities cited; Courtland Co. v. Herkimer Co., 44 N.Y. 22; Moore v. Davis, 49 N.H. 45; Vansickle v. Brown, 68 Mo. 627; Fisk v. Chester, 8 Gray, 506; Thacher v. Phinney, 7 Allen, 146; Snow v. Paine, 114 Mass. 520. The suit of Nichols v. Winfrey, 79 Mo 544, was, in all respects, similar to this; an action by the widow of the deceased against defendant, for the wrongful killing of her husband. The supreme court in that case held that defendant had the right to state as a witness his motive and intent in killing deceased. That the question, with what motive and intent he did the act, which resulted in the death of the deceased, was a proper and a legal inquiry. All the authorities hold that such question is legal and proper. 64 Mo. 560; 73 Mo. 592; 68 Mo. 634; 5 Bing. (N. C.) 722; 30 N.Y 625; 60 N.Y. 288; Field on Damages, sec. 25. (2) The defendant had the right in his defense to prove that his general reputation as a peaceable, quiet, orderly and law-abiding citizen was good. (3) It was error to permit plaintiff's attorney to state to the jury that the defendant brought the case from Boone county by change of venue. (4) The court erred in giving instructions for plaintiff.

Odon Guitar for respondent.

(1) It was not error to refuse to permit defendant, after having testified to every fact and circumstance connected with the killing, to give his opinion as to his own guilt or innocence. See State v. Gonce, 88 Mo. 627; United States v. Anthony, 2 Gerrin's Crim. Law Rep. 208, note; State v. Hultz, 106 Mo. 41. (2) There was no error in excluding the evidence as to defendant's character. 1 Wharton's Evidence, sec. 47; Soule v. Bruce, 67 Me. 584. (3) Nor did the court err in overruling the motion to suppress depositions. Wallack v. Paterson, 54 Mo. 408; Moss v. Booth, 34 Mo. 316; Borders v. Barber, 81 Mo. 636. (4) Nor was there any error committed on part of plaintiff's counsel in their reference to the change of venue in making open statement to the jury. It was not assigned for error in the motion for a new trial.

OPINION

Brace, J.

This is an appeal by the defendant from a judgment of the circuit court of Randolph county in favor of the plaintiff for the sum of $ 5,000 damages assessed by a jury against the defendant in an action brought by the plaintiff in the circuit court of Boone county against him for wrongfully killing her husband, Allen Vawter, and by the defendant taken thence to Randolph county by change of venue. The homicide was committed on the seventh of May, 1888. The defendant was criminally prosecuted therefor, and found guilty of murder in the second degree in the Boone circuit court, and on appeal to this court the judgment of the circuit court was affirmed at the April term, 1891. State v. Hultz, 106 Mo. 41, 16 S.W. 940. The errors assigned and relied on for reversal will be noticed in their chronological order.

I. Before the trial defendant moved the court to suppress the depositions of certain witnesses taken in behalf of the plaintiff, on the ground that he was not present at the taking, and that it does not appear from the certificate of the officer that the depositions were taken at the place designated in the notice, or that they were taken by an officer authorized to take them. The notice was that the depositions would be taken at "the law office of C. H. Gordon and E. M. Bass in the town of Columbia in the county of Boone and state of Missouri on the twenty-fifth day of February, 1890, between the hours of eight o'clock in the forenoon and six o'clock in the afternoon of that day," etc. The depositions purporting to have been taken in pursuance of this notice were authenticated as follows:

"Depositions of witnesses produced, sworn and examined on the twenty-fifth day of February, 1890, between the hours of eight o'clock in the forenoon and six o'clock in the afternoon of that day at the office of C. H. Gordon and E. M. Bass in the county of Boone and state of Missouri, before me, W. H. Truitt, a notary public, in a certain cause now pending in the circuit court of Randolph county in the state of Missouri, between Mrs. Bettie Vawter, plaintiff, and Marshall Hultz, defendant. On the part of plaintiff." Following this caption were the depositions of the witnesses in the order taken; at the foot of each the witness signed his name, and to each the officer beneath the signature of the witness appended the following jurat: "Subscribed and sworn to before me [naming the day] at the place and between the hours aforesaid. W. H. Truitt, N. P.;" and attached his notarial seal. At the foot of all the depositions the notary appended his certificate as follows:

"I, W. H. Truitt, a notary public within and for the county of Boone in the state of Missouri, do certify, that in pursuance of the annexed notice came before me at the office of Bass & Gordon, in the county and state aforesaid [naming all the witnesses], who were by me severally sworn to testify the whole truth of their knowledge touching the matter in controversy aforesaid, and that they were examined and their examination reduced to writing and subscribed by them respectively in my presence on the day, between the hours and at the place in that behalf aforesaid, and that their depositions are now herewith returned, and I further certify [naming all the witnesses again] are residents of said county of Boone in the state of Missouri. Given at the office of Bass & Gordon, in the county of Boone, in the state of Missouri, this fourth day of March A. D. 1890.

[NOTARIAL SEAL.] W. H. Truitt, Notary Public.

"My commission as notary public will expire January 30, 1892."

Depositions of witnesses to be read in evidence in a civil suit pending in any court in this state may be taken by a notary public. Revised Statutes, 1889, sec. 4437. This certificate contains the facts required to be certified to by such officer (Revised Statutes, 1889, sec. 4455), and is certified to by such an officer "in his official character, and is accompanied by his seal of office," as required by section 4455, Revised Statutes, 1889. Consequently, the depositions were taken by an officer duly authorized, and are properly authenticated. He certifies, in effect, that they were taken in pursuance of the notice which was annexed thereto "at the office of Bass & Gordon, in the county and state aforesaid." "The whole paper, the caption and certificates, should be read in connection, and if from the whole the official character of the certifying officer, as also the venue, can be ascertained to a reasonable certainty, this will suffice." Borders v. Barber , 81 Mo. 636; Weeks on Law of Depositions, sec. 351. This author also says that, "if the return states that the deposition was taken pursuant to the commission, it is not essential that it should also state the manner of pursuing the commission." Sec. 351, supra. The office of Bass & Gordon mentioned in the certificate is shown by the caption to be the office of C. H. Gordon and E. M. Bass, in the county of Boone, in the state of Missouri. Now if the depositions were taken at their office in pursuance of the notice, it must be inferred that it was at the...