State v. Tarwater

• Decision Date: 20 March 1922
• Docket Number: No. 23302.,23302.
• Citation: 293 Mo. 273,239 S.W. 480
• Parties: STATE v. TARWATER
• Court: Missouri Supreme Court

239 S.W. 480

293 Mo. 273

STATE v. TARWATER

No. 23302.

Supreme Court of Missouri, Division No. 2.

March 20, 1922.

Appeal from Circuit Court, Daviess County; Arch B. Davis, Judge.

Hugh Y. Tarwater was convicted of murder in the second degree, and he appeals. Affirmed.

On the 23d day of December, 1919, appellant went to the editorial and business office. of the Gallatin Democrat in Daviess county, Mo., and there shot and fatally wounded Wesley L. Robertson, the editor. Robertson died the same day. For this appellant was charged with murder in the first degree. Upon a trial, he was convicted of murder in the second degree, and sentenced to imprisonment in the state penitentiary for a period of 35 years. His plea was that of self-defense and insanity

There was a vast accumulation of testimony on both sides of the issues joined, and the sufficiency thereof to warrant a conviction was not challenged below. The assignments of error are procedural, and relate chiefly to the admission and exclusion of testimony, all of which, with such statement of facts as may be pertinent, will appear in the course of the opinion.

John C. Leopard & Son, of Gallatin, W. W. Davis, of Chillicothe, and Dudley & Brandom, of Gallatin, for appellant.

Jesse W. Barrett, Atty. Gen., and Henry Davis, Asst. Atty. Gen., for respondent.

REEVES, C.

(after stating the facts as above). 1. The initial complaint is that the trial court erred in refusing to admit certain record and documentary evidence.

(a) On his insanity plea appellant sought to show by the records of the insane asylum at Fulton, Mo., that his father, William A. Tarwater, had been confined there in the year 1885. Such records were rejected because it did not appear that they were authorized either by express statute or by the nature of the duties of those in charge there-of. Appellant relies on the provisions of section 12283, R. S. 1919, as sufficient to authorize such records to be made and kept. This statute was in force in 1885, and is as follows:

"Detailed Statement to Accompany Patient. —There shall be sent with each patient a detailed account of his or her case, as far as practicable, stating the cause of his or her insanity, its duration, the former treatment of the patient, and all other particulars relating to the patient, and his or her disease; and, if possible, some one acquainted with the individual should accompany him or her to the hospital, from whom minute and essential particulars of his or her insanity may be learned."

This section requires a "detailed account * * * stating the cause of his * * * insanity, its duration," etc. This "detailed account" is not required by statute to be filed, recorded, or preserved, and it did not appear from testimony aliunde that it was the duty of any functionary or agent of the state to preserve in any form such detailed account or other particulars regarding the physical condition or treatment of the patient. Furthermore, it was not shown that the record offered in evidence was either the "detailed account" required by statute or a copy or record thereof.

The rule is that:

"Writings, such as a public functionary is required to enter in books in the course of public duties, are public documents, and they, or exemplified copies of them, are admissible in evidence"

—although this rule has been challenged by some of the authorities where the duty is imposed by a city ordinance as a mere police regulation. Connor v. Insurance Co., 78 Mo. App. 131.

The present rule, however, is as first stated. State v. Austin, 113 Mo. 538, 21 S. W. 31; Levels v. Railroad, 196 Mo. 606, 94 S. W. 275; Priddy v. Boice, 201 Mo. 309, 99 S. W. 1055, 9 L. R. A. (N. S.) 718, 119 Am. St. Rep. 762, 9 Ann. Cas. 874; State ex inf. v. Heffernan, 243 Mo. 442, 148 S. W. 90; Delmar Inv. Co. v. Lewis, 271 Mo. 317, 196 S. W. 1137; Nora Simpson et al., Administrators, v. Rolla Wells, Receiver (Mo. Sup., No. 22403) 237 S. W. 520, not yet [officially] reported; C. J. 22, p. 791; 10 Ruling Case Law, § 303, p. 1100; Wigmore On Evidence, vol. 3, § 1630; Ohmeyer v. Supreme Forest, Woodmen Circle, 91 Mo. App. 189.

It will be observed from the above authorities that the documents eligible for use as testimony were such documents and records as were required by law to be kept, and in nearly all the cases were declared by statute to be prima facie evidence. Such is not the case here.

In the case of Priddy v. Boise, supra, 201 Mo. ke. cit. 334, 99 S. W. loc. cit. 1059, 9 L. R. A. (N. S.) 718, 119 Am. St. Rep. 762, 9 Ann. Cas. 874, Craves, J., made an exhaustive review of all of the authorities touching the question before us. The question there was the admissibility of properly certified copies of United States census reports. The learned author of that opinion said:

"These are public official records, required by law to be made and kept, by sworn public officials of the law, and by law required to contain the name, age, sex, color, occupation, etc., of each inhabitant."

The case of Flora v. Anderson (C. C.) 75 Fed. loc. cit. 231, was cited with approval in the Priddy Case. It, too, had the question of the admissibility of United States census reports and the following apt excerpt is taken therefrom.

"That such documents, being official registers, are admissible in evidence in so far as they contain statements as to matters which the law requires should be inquired into, reported upon, and then recorded."

The records under review do not come within the rule which admits in evidence:

"Official registers of records kept by persons in public office in which they are required, either by statute or by the nature of their office, to write down particular transactions occurring in the course of their public duties or under their personal observation." Taylor, Evid. § 1429; 1 Greenl. Evid. § 483.

In the case at bar it did not appear either by statute or by compulsion of official duty, that such record should be kept. Hegler v. Faulkner, 153 U. S. 109, 14 Sup. Ct. 779, 38 L. Ed. 653; State v. Page's, 92 Mo. 300, loc. cit. 310, 4 S. W. 931; Childress et al. v. Cutter, 16 Mo. 24, loc. cit. 46. In the latter case the rule was aptly stated as follows:

"It seems that the admissibility of the facts recited in, these registers should depend upon the terms of the authority by which they are required to be kept."

We have been unable to find a single case where a record of the character of the one at bar was admissible in evidence, in the absence of express statutory authorization or the stamp of official duty.

In the case of Raymond v. Flint, 225 Mass. 521, 114 N. D. 811, a similar question was before the court. The party whose mental condition was under inquiry was confined in the hospital in 1896. The hospital was required by statute to keep records of the treatment and medical history of those under its care, and the court quoted from the statute to the effect that—

Such records and "similar records kept prior to April twenty-fifth, nineteen hundred and five, shall * * * be admissible as evidence in the courts of the commonwealth, so far as such records relate to the treatment and medical history of such cases."

There was proof otherwise that appellant's father was insane and confined in the asylum at Fulton.

(b) Appellant was confined in the insane asylum at St. Joseph twice during the year 1896, and he attempted to introduce the records of that institution relating to his own confinement. This evidence was rejected for the same reasons as set forth in paragraph A hereof. The same authorities are applicable here as there, as there was no statutory authority for the keeping of such records, and it did not appear that by custom or otherwise it was the duty of any public functionary to make and preserve them. However, the court did not reject such records in toto, but expressly ruled that parts of said record might be used. The parts rejected have not been preserved for our review.

Other testimony gave in detail the condition of appellant on both the occasions of his confinement at the St. Joseph Insane Asylum.

(c) Appellant sought to introduce in evidence an article published in the Gallatin Democrat in its issue of May 30, 1918, entitled "Will He Help Raise Hell," for the purpose of showing the effect of such article upon the mind of appellant, and as relevant under his plea of insanity. This article did not refer to appellant, but was a discussion of a contest between Judge Divelbiss and Judge Alexander, who were rival candidates for the Democratic nomination for Congress. The Democrat was supporting Judge Alexander, who lived at Gallatin, and the article referred to Judge Divelbiss, who resided at Richmond in Ray county. This article was published May 30, 1918, and is as follows:

"While Judge Divelbiss was speaking for the Red Cross and conducting a personal campaign for Congress in Daviess County last week, his `political organ' down in Ray County was `flashed' this bit of news: `Information received at the News office this week says that there is a probability of a new Democratic paper being launched at Gallatin within the next few weeks.' And the Judge's organ `conceives' as the reason for the launching the necessity of getting rid of `Gallatin Domination' in the District— that `nightmare' on which the Judge is galloping down and up and over and across the district vainly striving to raise a hullabaloo of sufficient magnitude to blind the people to their interests, and the country's interest in forgetting the great service Judge Alexander is rendering the Administration at this critical time.

"But the prime promoter of this `new paper in Gallatin' is more outspoken regarding his intention—and frankly states he `proposes to raise hell' among Democrats. It is possible that in this aspiring politician from Ray he has discovered the one he `long has sought and mourned because he found him not.' Failing to `float' his project among those to whom appeal has...