Kelly v. Maryland Casualty Co.

• Decision Date: 16 July 1929
• Citation: 45 F.2d 782
• Parties: KELLY v. MARYLAND CASUALTY CO.
• Court: U.S. District Court — Western District of Virginia

45 F.2d 782 (1929)

KELLY v. MARYLAND CASUALTY CO.

District Court, W. D. Virginia.

July 16, 1929.

Opinion No. 2.

McDOWELL, District Judge.

A trial of this case recently held resulted in a hung jury, and it is expected that the case will be retried. The most important witness for the plaintiff, a woman, testified concerning an alleged robbery of a bank. Counsel for the defendant, desiring to thus impair the credit of the witness, avowed ability to prove by a physician then present that the woman had for about 18 months been addicted to the use of morphine. It subsequently developed that she used from three to five grains per week. The physician, a rather youthful general practitioner, would also have testified: "My opinion is that an excessive use of morphine, such as indicated, might tend to undermine the morale of a person, especially for truthfulness, and make them cunning. It also tends to make them unreliable. I might also say that a drug addict might feign anything."

I held the avowal insufficient to justify evidence of the woman's drug addiction, and the propriety of that ruling justifies a somewhat elaborate discussion of the admissibility of evidence of narcotism, and more especially of evidence of morphinism, in order to weaken the credit of an opponent's witness.

The Rules in the Law Books.

1. Effect of Drug Addiction Matter of Common Knowledge.

In State v. Concannon, 25 Wash. 327, 65 P. 534, 537, it is said:

"The habitual use of opium, as shown, by Dunlap, is known to utterly deprave the victim of its use, and render him unworthy of belief."

2. Narcotism Usually Causes Moral Depravity.

In the following cases there seems to be at least implied adherence to a theory that the habitual use of a narcotic drug causes moral depravity: State v. Prentice, 192 Iowa, 207, 183 N. W. 411, 412, 413, 15 A. L. R. 904, 911; Anderson v. State, 65 Tex. Cr. R. 365, 144 S. W. 281, 282; Beland v. State, 86 Tex. Cr. R. 285, 217 S. W. 147.

3. The Dream State Theory.

In State v. Fong Loon, 29 Idaho, 248, 158 P. 233, 236, L. R. A. 1916F, 1198, it is said:

"We believe it will be admitted that habitual users of opium, or other like narcotics, become notorious liars. The habit of lying comes doubtless from the fact that the users of those narcotics pass the greater part of their lives in an unreal world, and thus become unable to distinguish between images and facts, between illusions and realities."

The foregoing was suggested by a somewhat similar statement in Wharton & Stillé, Medical Jurisprudence (3d Ed.) § 1111, quoted in the opinion.

4. Professor Wigmore's Rule.

In 2 Wigmore, Ev. (2d Ed.) § 934, it is said:

"Any diseased impairment of the testimonial powers, arising from whatever source, ought also to be considered. * * * Accordingly, evidence of the morphine or other drug habit, in that it may have had such an effect, should be received."

In a note to the foregoing text (page 322), the author says of one of the opinions cited that it "shows no appreciation of modern science."

5. Drug Addiction a Collateral Matter.

In State v. King (1903) 88 Minn. 175, 92 N. W. 965, 968, the trial court refused to permit the defendant to prove that a witness for the prosecution was a confirmed opium eater; and that the use of opium renders the user unreliable in his statements and prone to falsehood. This ruling was approved, on the ground that the matter was a collateral issue.

6. The Rule in Cyc.

In 40 Cyc. 2575, it is said:

"The mere fact that a witness uses or has used drugs does not impair his credibility in the absence of any showing that his mind or memory has been affected thereby, or that he was under the influence of drugs at the time of the occurrence as to which he testifies, or is under such influence when his testimony is given."

See, also, 15 A. L. R., note page 912; 5 Jones Ev. § 2116 and 6 Jones Ev. § 2444.

Cases at least partly supporting the text quoted above are: McDowell v. Preston, 26 Ga. 528; Eldridge v. State (1891) 27 Fla. 162, 9 So. 448, 453; Franklin v. Franklin (1891) 90 Tenn. 44, 16 S. W. 557, 558; Williams v. U. S. (1904) 6 Ind. T. 1, 88 S. W. 334, 337, 338; Standard Oil Co. v. Carter (1923) 210 Ala. 572, 98 So. 575, 577; State v. Gleim (1895) 17 Mont. 17, 41 P. 998, 31 L. R. A. 294, 52 Am. St. Rep. 655, 663, 664; State v. Robinson (1895) 12 Wash. 491, 41 P. 884, 886; Wilson v. U. S., 232 U. S. 563, 567, 568, 34 S. Ct. 347, 58 L. Ed. 728.

In Katleman v. State (1919) 104 Neb. 62, 175 N. W. 671, 672, it is held that medical evidence as to the effect of drug addiction on the veracity-character of a witness shown to be a drug addict is inadmissible.

See also, of minor importance, Botkin v. Cassady (1898) 106 Iowa, 334, 76 N. W. 722, 723; State v. Schuman (1915) 89 Wash. 9, 153 P. 1084, Ann. Cas. 1918A, 633; People v. Webster (1893) 139 N. Y. 73, 34 N. E. 730, 734.

Comments on the Rules of Law.

Preparatory to a consideration of the foregoing rules of law, I have examined every medical work that I have been able to obtain from local physicians. In 3 Wigmore, Ev. (2d Ed.) § 1700 d, p. 651, it is said: "Finally (and apart from the use, already referred to, of literary works and dictionaries) there is often found an open and deliberate citation by the court itself to encyclopedias, medical works, and the like, as giving a foundation of fact for subjects involved in their decisions." In addition to the foregoing, the use I have made of medical works seem to me to be in this particular case fully justified. Several (variant) rules of law concerning the admissibility of evidence of drug addiction have been stated. I recur to these rules here merely to call attention to the fact that no court could have formulated, and no court could intelligently adopt or reject, any one of those rules, without having accepted as sound some theory as to the usual effect of narcotic drug addiction on the addict. And an intelligent adoption of one, rather than of some other, scientific theory makes necessary some knowledge of the different theories and of the reasoning supporting them. It seems to me to follow that it is the duty of a judge in my situation to inform himself as well as he reasonably may concerning the reasons for the differing medical opinions before he undertakes to make choice between them.

Again, it is to my mind much more satisfactory for the judge to read all the medical works he can reasonably obtain, rather than to rely wholly on the medical works selected by medical witnesses, whose selections might easily be influenced by conscious or unconscious partisanship.

(A) The Common Knowledge Theory.

There is no doubt in my mind of the existence of a widespread popular distrust of the veracity of all narcotic drug addicts, even in respect to matters in general. But a widespread popular belief is not necessarily based in truth. If it relates to a matter of science, the popular belief may easily be a mere reflection of an opinion once generally held by scientists, but now repudiated by those who are best informed. An induction of medical science, and especially a very sweeping induction, cannot possibly be a matter of such notoriety as to be treated as true without evidence, unless it has the support of all, or of practically all, well-informed medical authorities. My examination of medical works has been quite incomplete; but I believe it has been sufficiently extensive for present purposes. Typical of what evidently was until recent times the universal, or almost universal, medical opinion, and of what is still the opinion of a very considerable body of medical writers, are the following:

In Principles and Practice of Medicine (9th Ed.) by Sir William Osler and Dr. Thomas McRae, at page 392, it is said:

"Persons addicted to morphia are inveterate liars, and no reliance whatever can be placed upon their statements. In many instances this is not confined to matters relating to the vice."

In Lectures on Mental Diseases by Dr. Henry Putnam Stearns (1898) at page 446, it is said of morphinism:

"The moral sentiments become changed very early in the disorder of the general system. Regard and consideration for friends and relatives becomes less marked, the love for family is lessened, the judgment clouded, and the person untrustworthy and regardless of truth; in fact I have rarely known one addicted to the practice of opium eating who was not an incorrigible liar."

To much the same effect, see Bleurer's Textbook of Psychiatry, Brill's translation, at pages 354, 355; Diseases of Society and Degeneracy (1906), by Dr. G. Frank Lydston, at page 207; Tyson's Practice of Medicine (1906), at p. 1161; Hare's Practice of Medicine (1905), at page 854 and 855; Jack's edition of Wheeler's Handbook of Medicine (1920), at page 143; The Individual Delinquent by Dr. Wm. Healy (1915), at page 277; Sajous's Cyclopaedia of Practical Medicine (10th Ed. 1927), at page 192; XVIII Ency. Britannica (11th Ed. 1910-11), at page 863; 20 Americana, at page 712.

On the other hand, there is a more modern theory. In 2 Nelson's Loose-Leaf Living Medicine, at page 605 C, Dr. Alexander Lambert, of New York City, says:

"Many of those indulging in morphin seem normal in all respects except in dealing with their habit, but in this regard fear of physical suffering, if they are deprived of their usual dose, brings on the most intense defensive reactions; they will give all kinds of excuses and they will invent all kinds of pretexts to obtain what they want; they will not hesitate to lie and deceive if fear pushes them that far."

And at page 607 C:

"Like all takers of narcotics, the users of morphin are untrustworthy so far as any statements they make about their drug taking are concerned, unless they realize that they will obtain their drugs without question and unless they have confidence in the person with whom they are discussing the matter."

In Drug Addiction in its Relation to Crime, by Dr. Lawrence Kolb, United...