State v. Kennedy

• Citation: 75 S.W. 979,177 Mo. 98
• Parties: THE STATE v. LULU KENNEDY, Appellant
• Decision Date: 03 July 1903
• Court: United States State Supreme Court of Missouri

75 S.W. 979

177 Mo. 98

THE STATE v. LULU KENNEDY, Appellant

Supreme Court of Missouri, Second Division

July 3, 1903

Appeal from Jackson Criminal Court. -- Hon. Jno. W. Wofford, Judge.

Reversed and remanded.

L. C Boyle, W. F. Riggs and C. H. Nearing for appellant.

(1) The court erred in permitting the prosecutor to state in his opening statement, and to introduce testimony on behalf of the State, tending to show a conspiracy, and the acts and statements of the claimed conspirators. The offense of conspiracy, even if murder be the result, is as separate and distinct an offense as that of robbery. A conspiracy can not be by one person. An indictment for conspiracy must not only state some overt fact of such conspiracy (R. S. 1899, sec 2632), but it must also name the conspirators if known. Wharton's Criminal Law, sec. 1388; State v Covington, 4 Ala. 603; U. S. v. Cole, 5 McLean 513; Bishop, Criminal Procedure, sec. 464; U. S. v. Cruikshank, 92 U.S. 542; U. S. v. Britten, 108 U.S. 199; U. S. v. Walsh, 5 Dill. U. S. 61; U. S. v. Haas, 124 U.S. 486; Pettibone v. U.S. 148 U.S. 197; Can v. Wall, 16 Gray (Mass.) 221; Alderman v. People, 4 Mich. 414; State v. Term, 2 Dev. 69; Jones v. Boker, 7 Cow. 445; People v. Richards, 1 Mich. 216, 51 Am. Dec. 84; Wharton, Criminal Law (10 Ed.), sec. 1388; Wharton, Criminal Practice (9 Ed.), sec. 305. The only cases where evidence of a conspiracy has been admitted without distinct allegations of such in the indictment, have been where several have been jointly indicted or named in the indictment as conncted with the offense. The existence or non-existence of the conspiracy was a question for the jury; upon that issue depended the competency of the statement of the claimed conspirator. How could that possibly be determined except the question of conspiracy was an issue? Bishop Criminal Procedure, sec. 519. (2) The court erred in overruling defendant's objection to the statements of defendant to her physician when treating her. Gastride v. Ins. Co., 76 Mo. 446; Scripp v. Foster, 41 Mich. 748; Pierson v. People, 18 Hun 245; Penn. Co. v. Marion, 123 Ind. 421; Huesten v. Simpson, 115 Ind. 63; Edington v. Ins. Co., 67 N.Y. 194.

Edward C. Crow, Attorney-General, Sam B. Jeffries, Assistant Attorney-General, H. S. Hadley and Frank G. Johnson for the State.

(1) The evidence in support of the claim of insanity was so meager that the trial court would not have erred under the decisions of this court if it had withdrawn it from the consideration of the jury. State v. Ward, 74 Mo. 253; Cutler v. Zollinger, 117 Mo. 192. (2) It is not necessary to charge a conspiracy in the indictment in order to make the evidence of a conspiracy possible. Wharton, Criminal Ev. (9 Ed.), sec. 701; 3 Rice's Criminal Ev., sec. 578; Gains v. State, 46 Ohio St. 457; United States v. Cole, 5 McLean 513; Blount v. State, 59 Ark. 422; People v. Linn, 39 Cal. 75; People v. Geiger, 49 Cal. 643; People v. McCane, 80 Hun. 322. (3) No error was committed by the court in permitting the prosecuting attorney to detail to the jury what he expected the evidence would show as to statements and acts of Will Prince, Bert Prince and C. W. Prince. Such statements and acts would be admissible after the introduction of evidence tending to show the existence of a conspiracy between defendant and the parties named. Weinstein v. Reed, 25 Mo.App. 41; State v. Daubert, 42 Mo. 241; State v. Cooper, 85 Mo. 260; State v. Walker, 98 Mo. 95, 598; State v. Crabb, 121 Mo. 562; State v. May, 142 Mo. 151; Whart. Crim. Law (9 Ed.), sec. 24; State v. English, 67 Mo. 137; R. S. 1899, sec. 2627; 3 Rice, Ev., 328; State v. Mewherter, 46 Ia. 88. "As a rule, any evidence that rebuts the main issue, or any minor inquiry, is pertinent." Rice, Ev., 328, citing: Com. v. Tinkham, 14 Gray 12; Aikins v. State, 16 Ark. 568; Spivey v. State, 26 Ala. 90; Lightfoot v. People, 10 Mich. 547; Coleman v. People, 55 N.Y. 81; State v. Shermer, 55 Mo. 83; Reid v. State, 50 Ga. 556; People v. Austin, 1 Park. Crim. Rep. 154; Crawford v. State, 12 Ga. 142. (4) Defendant objected to what was said by defendant to the doctor on the day of the killing. But the evidence shows that this visit to the doctor's office was not for the purpose of obtaining treatment or with reference to any treatment which had been given her, but was for the purpose of getting the witness to act as a go-between for her, ostensibly to communicate to her husband the information that she was pregnant. Therefore, what she said to the doctor on this occasion was not a privileged communication and this is true of all that she said to the doctor on that afternoon. The relation of physician and patient did not exist at this time between them. The statute does not make a physician or surgeon incompetent to testify as to all information acquired even from a patient; he is incompetent only as to information which was necessary to enable him to prescribe for such patient as a physician or do any act for him as a surgeon. Linz v. Ins. Co., 8 Mo.App. 369; Bowles v. Kansas City, 51 Mo.App. 416. On this point the same principle applies to the relation of physician and patient as to that of lawyer and client. Information belonging to ordinary as distinguished from professional intercourse, is not within professional privilege. The topic must be within the prescribed scope of a lawyer's profession. Wharton's Crim. Ev. (9 Ed.), sec. 503. The principle does not protect disclosures which are not made in confidence to the lawyer or physician in his professional capacity. Standard Oil Co. v. Meyer Bros. Drug Co., 84 Mo.App. 80. The privilege does not shield parties seeking for advice as to prospective or past infractions of law. Wharton's Crim. Ev., sec. 504; State v. McChesney, 16 Mo.App. 259. This principle applies to communications made to a physician or surgeon. "The privilege also does not cover consultations for criminal purposes." Wharton's Crim. Ev., sec. 516. Under these decisions any communication made by defendant to Dr. Cross with reference to an abortion would not be privileged. And what defendant said with reference to her pregnancy, if for any purpose of treatment, was for the purpose of having an abortion performed. No disclosure was made of any matter communicated to the doctor for the purpose of enabling him to treat her for anything else, so that it appears clearly that the court committed no error in admitting the testimony of Dr. Cross. (5) Instruction 7 in substance told the jury that if the act of defendant was the result of uncontrollable passion and revenge, then she could not claim the protection of insanity. This court never has recognized the doctrine of uncontrollable impulse. State v. Turlington, 102 Mo. 642; State v. Miller, 111 Mo. 542; State v. Pagels, 92 Mo. 300; State v. Soper, 148 Mo. 236. Mere emotional insanity or temporary frenzy or passion arising from excitement or anger and not from any mental disease, is never an excuse. Clark's Crim. Law, 58. The heat of passion produced by motives of anger, hatred or revenge, is not insanity. People v. Martin Foy, Jr., 138 N.Y. 664. "Where persons allow their anger to lead them so far as to make them reckless, the fact that they have become at last too infuriated to keep them from mischief is merely the result of not applying restraint in season. That condition which springs from undisciplined and unbridled passion is clearly within legal as well as moral censure and punishment." People v. Lulu Mortimer, 48 Mich. 37; People v. Finley, 38 Mich. 482; Welsh v. Ware, 32 Mich. 77. A frenzied condition of mind occasioned by allowing evil passion to control one's action, is not insanity. State v. Murray, 11 Oregon 413.

BURGESS, J. Fox, J., concurs; Gantt, P. J., dissents.

OPINION

BURGESS, J.

At the April term, 1901, of the criminal court of Jackson county, the defendant was convicted of murder in the second degree, and her punishment fixed at ten years' imprisonment in the penitentiary, under an indictment theretofore presented by the grand jury of said county charging her with murder in the first degree for having at said county on the 10th day of January, 1901, shot and killed with a pistol her husband, Phillip H. Kennedy.

In due time defendant presented a motion for a new trial, which being overruled, she saved her exception, and brings the case to this court, by appeal, for review.

The defense was insanity, the homicide being admitted.

The salient facts which led to the killing are about as follows:

The defendant was about twenty-three years of age at the time of the homicide, and lived with her parents, and two brothers, Charles William and Albert K. Prince, commonly called Bert. The deceased, Phillip H. Kennedy, was about thirty years of age at that time, and was employed as clerk and solicitor in the Merchants Dispatch Transportation Company, with offices on the second floor of the new Ridge building, situated on the east side of Main street between Ninth and Tenth, Kansas City. He lived with his father and mother, brother and sister. The defendant and the deceased had been acquainted for about two years prior to the killing, and in the latter part of 1899 and the early part of 1900 the deceased called on the defendant frequently at her home and at the place where she worked. In the month of April, 1900, Will, the brother of the defendant, noticed the attentions of the deceased to the defendant, went to him, and asked him if his intentions were serious. On being answered in the negative Will Prince requested Mr. Kennedy to cease calling on his sister, and after that time the evidence discloses that they were together but twice until the 4th day of December, 1900.

On December 4, 1900, the deceased was called by telephone, while in his office in...