Shepard v. United States

• Decision Date: 05 April 1933
• Docket Number: No. 564.,564.
• Citation: 64 F.2d 641
• Parties: SHEPARD v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

64 F.2d 641 (1933)

SHEPARD v. UNITED STATES.

No. 564.

Circuit Court of Appeals, Tenth Circuit.

April 5, 1933.

Harry W. Colmery and Balfour S. Jeffrey, both of Topeka, Kan., C. L. Kagey, L. M. Kagey, and Kagey & Black, all of Wichita, Kan., and Doran, Kline, Colmery & Cosgrove, of Topeka, Kan., for appellant.

S. M. Brewster, U. S. Atty., and L. E. Wyman, Donald Little, and Dan B. Cowie, Asst. U. S. Attys., all of Topeka, Kan., for appellee.

Before LEWIS, COTTERAL, and PHILLIPS, Circuit Judges.

COTTERAL, Circuit Judge.

It must have been an undue zeal that prompted counsel in casting the imputation upon this court that it in any way prejudged appellant's case, and found the errors justified in the "failures of counsel," especially since this court passed over certain fatal objections to a review of the rulings upon the evidence and the instructions to the jury. Rule 11 of this court requires assignments on questions of evidence to quote the full substance of the evidence admitted or rejected. But there was a total omission to comply with the rule. The instructions are not subject to review, because they do not appear in the bill of exceptions, and are only certified by the clerk. United States v. Taylor, 147 U. S. 695, 13 S. Ct. 479, 37 L. Ed. 335; Clune v. United States, 159 U. S. 590, 16 S. Ct. 125, 40 L. Ed. 269; Addis v. United States (C. C. A.) 62 F.(2d) 329. Appellant was therefore not entitled to be heard upon the objections to the testimony of Nurse Brown or Sergeant Gresser, or to contend that the instructions were faulty in not limiting the consideration of that testimony by the jury to rebuttal of the suicide theory. But, arriving at the same result, we did not notice these objections as we might have done and might well now do, and preferred, owing to the gravity of the case, to decide the questions raised on the assumption they were reviewable.

We adhere to the ruling that the declarations of Mrs. Shepard were competent testimony. The doctrine upon which they were admissible is thus stated in Connecticut Mutual Life I. Co. of Hartford, Conn. v. Hillmon, 145 U. S. 285, 12 S. Ct. 909, 36 L. Ed. 706. At page 295 of 145 U. S., 12 S. Ct. 909, 912, 36 L. Ed. 706, it is said:

"A man's state of mind or feeling can only be manifested to others by countenance, attitude, or gesture, or by sounds or words, spoken or written. The nature of the fact to be proved is the same, and evidence of its proper tokens is equally competent to prove it, whether expressed by aspect or conduct, by voice or pen. When the intention to be proved is important only as qualifying an act, its connection with that act must be shown, in order to warrant the admission of declarations of the intention. But whenever the intention is of itself a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party."

The principle of that case is of course not open to question. It has been applied as an exception to the hearsay rule by the textwriters and the courts. 3 Wigmore on Ev. (2d Ed.) § 1725 et seq.; 4 Chamberlayne, Mod. L. Ev. § 2654; 11 Ency. Ev. 418; 22 C. J. 284; State v. Hayward, 62 Minn. 474, 65 N. W. 63; Commonwealth v. Trefethen, 157 Mass. 180, 31 N. E. 961, 24 L. R. A. 235; United States v. O'Brien (C. C. A.) 51 F.(2d) 37; Brawner v. Royal Indemnity Co. (C. C. A.) 246 F. 637; Lusk v. Phelps, 71 Okl. 150, 175 F. 756; The San Rafael (C. C. A.) 141 F. 270.

The state of mind or intention of a deceased person at a given time may become a distinct matter of proof. It is undoubted that Mrs. Shepard came to her death from mercurial poisoning. The defense was the poison was self-administered. Threats of suicide on her part were put in evidence, reinforced by her declarations that she did not want or expect to live. The tendency of that evidence was to show both her state of mind as averse to living and her intention to commit suicide. The objection of the defense was not tenable to opposing evidence in rebuttal on the same subject. It is within the distinct office of rebuttal to explain, repel, counteract, or disprove the evidence of the adverse party. Claycomb v. State, 22 Okl. Cr. 315, 211 P. 429. Mrs. Shepard's declarations introduced by the government were not merely narrative of a past event. In ascribing the poisoning to another, they tended to contradict the making of declarations imputed to her by the defense and to disprove a state of mind or intention disposed toward self-destruction. The evidence on both sides was relevant upon the issue of suicide or murder.

It is said the evidence in this case justifies suspicion but falls deplorably short of proof. We had not thought it necessary to specially comment in our original opinion on the force of the circumstances. We summarized the more important evidence favorable to the government. As there stated, the defendant had access to and obtained mercurial tablets, he prepared tablets for the nurse to give to his wife, he opposed the post mortem, he sought to wed Grace Brandon, and he lavished gifts upon her. It suffices to quote from Burns v. State, 8 Okl. Cr. 554, 129 P. 657, at page 663, where it was said: "Both sacred and profane history furnish many examples showing that illicit love is a most powerful motive for and fruitful source of assassination." See, also, McClintock v. State, 29 Okl. Cr. 216, 232 P. 853.

The point is emphasized that the declarations were not made under circumstances indicating trustworthiness. The rule conditioning their admission is not questioned. Evidence is cited to show the disordered condition at times of Mrs. Shepard's mind. One answer is that the declarations introduced by the defense were open to the like objection. But it was a preliminary matter for the trial judge to determine whether the witness was mentally competent. His ruling was presumably correct, and it is not reviewable unless it was clearly erroneous. New York Evening Post v. Chaloner (C. C. A.) 265 F. 204; District of Columbia v. Armes, 107 U. S. 519, 2 S. Ct. 840, 27 L. Ed. 618; Dutton v. Atlantic C. L. R. Co., 104 S. C. 16, 88 S. E. 263, affirmed 245 U. S. 637, 38 S. Ct. 191, 62 L. Ed. 525. We are not persuaded that error occurred. The ultimate question as to the weight of the evidence was one for the jury.

Counsel still insist that the instructions were faulty in not limiting without request the consideration by the jury of the declarations of Mrs. Shepard. The evidence itself was competent. The settled rule is that the request was indispensable. It was not dependent, as counsel urge, on the grade of the offense. The principle was applied by the Supreme Court in a prosecution for murder. Goldsby v. United States, 160 U. S. 70, 16 S. Ct. 216, 40 L. Ed. 343. The complaint of the instructions therefore fails for want of an appropriate request by the defense. Nowhere is the rule more clearly stated that errors not reserved will not be noticed than in an opinion of this court, delivered by Judge Lewis, in Bogileno v. United States, 38 F.(2d) 584, where it was held they must be serious and fatal to defendant's rights. Wiborg v. United States, 163 U. S. 632, 16 S. Ct. 1197, 41 L. Ed. 289; Brasfield v. United States, 272 U. S. 448, 47 S. Ct. 135, 71 L. Ed. 345; Gillette v. United States (C. C. A.) 236 F. 215; Lamento v. United States (C. C. A.) 4 F.(2d) 901; Reynolds v. United States (C. C. A.) 48 F.(2d) 762.

The declarations introduced by the government were not of that character. Counsel for the defense minimize their influence by urging the incompetency of the declarant. The case was presented of a husband recreant to his marriage vows, with the opportunity and a powerful motive to perpetrate the homicide. Aside from the declarations of his wife, a conviction was fully justified, and they were in no sense fatal to the rights of the defendant. They were of minor weight as compared with the incriminating circumstances to which we have adverted.

Our conclusion is that the petition for rehearing is not well taken, and it is accordingly denied.

PHILLIPS, Circuit Judge (dissenting.)

For the reasons stated in my former dissent in this case, I am of the opinion that the admission of the testimony of Nurse Brown and Sergeant Gresser as to the statements made by Mrs. Shepard were prejudicial and reversible error. In a case involving the liberty of the defendant for the remainder of his natural life, I am not greatly concerned with technical defects in the errors assigned.

As observed in my former dissent, the statements adverted to above were not declarations manifesting an existing...