Effinger v. Effinger
| Decision Date | 07 October 1925 |
| Docket Number | 2645. |
| Citation | 239 P. 801,48 Nev. 205 |
| Parties | EFFINGER v. EFFINGER. |
| Court | Nevada Supreme Court |
Appeal from District Court, Washoe County; Thomas F. Moran, Judge.
Suit by Robert Craig Effinger against Annie Harahan Effinger for divorce. From a decree of divorce, and an order denying a motion for new trial, defendant appeals. Affirmed.
See also, 228 P. 615.
Cooke & Stoddard and Sardis Summer-field, all of Reno, for appellant.
Thatcher & Woodburn, of Reno, for respondent.
In this action respondent sued for and obtained a decree of divorce from appellant. The complaint alleged extreme cruelty. The charges of cruelty were denied in the answer. For a further defense, and by way of counterclaim, appellant charged the respondent with willful desertion, and prayed for a decree of separate maintenance. On the trial of the case, at appellant's request, the counterclaim was dismissed. The case was tried before a jury. Special issues were submitted to the jury, and also a form of general verdict, all of which were found in favor of respondent. A decree of divorce was entered, from which, and the order denying a motion for a new trial, this appeal is taken.
Appellant assigns as error the admission of the testimony of Dr. R. H Richardson, a witness for respondent, whose testimony went to the credibility of Mrs. Burger, a witness for appellant. The circumstances under which the doctor's testimony was admitted are as follows: Mrs. Burger testified that she had resided in Reno at the Gibson Apartments, and that a manicurist, Mrs. McKinney, had apartments next to hers. She stated that she saw the respondent leaving the apartments of the manicurist late at night a number of times. She said she saw him on one occasion leaving about 20 minutes past 2 in the morning, and on another about 1; never before 12. The witness then described in detail the brevity of the manicurist's costume and the affectionate nature of respondent's leave-taking. She also testified as to conversations she had with respondent at the Riverside Hotel in Reno about the 30th of July, 1921, in which he told her that he wanted to get a divorce from his wife; that he had absolutely no reason, but was going to get a divorce, if he had to manufacture some grounds on which to get it; and that as soon as he got it he was going to marry his secretary. The witness also testified that respondent told her in one of these conversations that he would poison his wife, if necessary, to get her out of the way.
Substantially stated, Dr. Richardson testified that he was the superintendent of the State Insane Asylum, and that Mrs Burger was received in that institution under the name of Elizabeth Ware on the 11th day of January, 1922; that she was committed to the asylum for two months as a drug addict of the pronounced type, and that her physical condition was caused by the persistent use of morphia hypodermically. He said that she was emaciated, nervous, and showed all the usual signs in such cases, including the marks of needles. In his opinion, the witness had been addicted to the use of morphia for over a year, and could not have arrived in her condition in a shorter period than six months. In response to a question as to whether drug addicts were worthy of belief he stated:
On cross-examination the doctor stated that his statement on direct, that drug addicts were not credible witnesses on a subject in which they were interested, should not have been so limited, but that he meant that they were just as liable to distort the truth as to things they were not interested in. He said, also, that the woman was discharged from the asylum after two months' treatment as cured. He stated that a drug addict, discharged as cured of the habit, had a tendency to avoid telling the truth, but for how long a time thereafter he did not know. He admitted that he had never made any investigation for the purpose of testing this opinion.
We think his testimony was properly admitted. The examination discloses that the doctor was amply qualified by knowledge of the subject and long experience in the observation and treatment of drug addicts to give his opinion that the witness was one, the probable duration of the habit, and its effect upon her mental faculties. The fact was established by the doctor's testimony that Mrs. Burger was a morphine addict of the pronounced type when received in the asylum. On cross-examination he emphasized his opinion given on direct by saying:
If the respondent could establish that she was such at the time of the occurrences and statements concerning which she testified, it was competent to show by expert testimony the abnormal effect upon her mind as to her liability to distort or subvert the truth. The propensity in this regard of an habitual user of drugs is well described and fortified by authority in State v. Fong Loon, 29 Idaho, 248, 158 P. 233, L. R. A. 1916F, 1198. The court said:
'
The mental confusion and impairment of moral character produced by the habitual use of morphine, cocaine, or a like narcotic are established facts in medical research. That such use may be shown for the purpose of affecting the credibility of a witness is also well established. State v. Fong Loon, 29 Idaho, 248, 158 P. 233, L. R. A. 1916F, 1198; Anderson v. State, 65 Tex. Cr. R. 365, 144 S.W. 281; People v. Webster, 139 N.Y. 73, 34 N.E. 730. In State v. Fong Loon, supra, the lower court was reversed for sustaining objections to questions propounded to a witness on cross-examination for the purpose of showing that he was an habitual user of opium and yen she. The appellate court said:
"And we think it was error for the court to restrict counsel for appellant's attempt to elicit by cross-examination this information from Yee Wee, or to lay the foundation for the purpose of establishing by independent proof that Yee Wee was an habitual user of opium or other like narcotics, the extent of that use, and what, if any, effect it had or was more than likely to have upon the mental balance of this witness, the truthfulness of his testimony, and his capacity to remember and correctly translate the questions of the representative of the state to Fong Chung into Chinese, and Fong Chung's answers into English."
Appellant contends that the doctor's testimony does not tend to show that Mrs....
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