The State v. Soper
| Decision Date | 21 February 1899 |
| Parties | The State v. Soper, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cass Circuit Court. -- Hon. W. W. Wood, Judge.
Affirmed.
Chas W. Sloan, James T. Burney and T. N. Haynes for appellant.
(1) The indictment having been returned by the grand jury on a legal holiday was not sufficient to base a charge on against the defendant. (2) More than half of the panel of forty jurors had formed and expressed opinions as to defendant's guilt, and so stated on their examination. The jury was not fair and impartial. (3) The court erred in admitting the letters in evidence. These letters were not properly identified and proven to have been written by the defendant. 1 Greenl. on Ev., sec. 576; State v. Brown, 70 Am Dec. 168; State v. Clinton, 67 Mo. 380. (4) The court erred in rejecting the testimony of McDonald in regard to defendant's conduct a short time prior to the homicide. Clark v. Sawyer, 3 Sandf. Ch. 351; Burkhart v. Gladish, 123 Ind. 338; State v Williamson, 106 Mo. 162. (5) It was error to reject the evidence of witnesses in regard to the insanity of their relatives. It is proper to prove insanity of deceased relatives from reputation in the family. 1 Rice on Ev., p. 415; 1 Greenl. on Ev., sec. 102; 2 Bishop on Crim. Proc., sec. 686; Gaines v. New Orleans, 6 Wall. 642; Reed v. State, 16 Ark. 499. (6) It was error to refuse to allow physicians to testify in regard to their examinations of defendant. Physicians, giving their opinions as to the sanity or insanity of defendant based on their personal examination of him, have the same right to give the grounds of their belief, including the patient's acts, conversation and conduct, as other witnesses have. Railroad v. Falvey, 104 Ind. 409; Railroad v. Newell, 54 Am. Rep. 312; Barber v. Merriam, 11 Allen, 322; Brown v. Railroad, 32 N.Y. 597; Quaife v. Railroad, 48 Wis. 513; Eckles v. Bates, 26 Ala. 655; State v. Gedicke, 43 N. J. L. 86; Railroad v. Sutton, 42 Ill. 438. (7) It was error for the State to recall witnesses for defendant for cross-examination, upon the question of insanity, who had not been examined by defendant on that subject. Rheinfeldt v. Dahlman, 19 N.Y. 162; State v. Thalheim, 38 Fla. 169; Houghton v. Jones, 68 U.S. 702; Donnelly v. State, 26 N. J. L. 463; Rice on Crim. Ev., p. 332. (8) (a) The court erred in permitting witnesses to give their opinions of the sanity of defendant without stating any facts upon which to base their opinions. State v. Klinger, 46 Mo. 224; State v. Erb, 74 Mo. 199; State v. Crisp, 126 Mo. 609; State v. Shaefer, 56 Mo.App. 501; Buswell on Insanity, secs. 240-243; 2 Bish, Crim. Proc., secs. 678-680. (b) Nonexpert witnesses for the State, as well as for the defendant must first testify to the facts upon which they base an opinion as to defendant's sanity before giving the opinion. Williams v. State, 39 S.W. 687; Hurst v. State, 40 S.W. 264. (9) It was error for the court to refuse counsel the right to read as a part of the argument to the jury the writings of eminent physicians on the subject of insanity. The writers were proven to be standard authority on the subject under discussion. Ins. Co. v. Cheever, 36 Ohio St. 201; 24 Albany Law Journal, p. 266; Merkle v. State, 37 Ala. 139. (10) (a) The court committed error in refusing instruction numbered 18, asked by defendant. State v. Baldwin, 12 Mo. 223; State v. Lowe, 93 Mo. 547; State v. Duestrow, 137 Mo. 44; Dacy v. People, 116 Ill. 555; Bishop, Crim. Law, secs. 383b and 387. (b) Defendant, being charged with the murder of his wife, was entitled to his instruction numbered 19 asked, embodying the additional presumption of innocence by reason of such marital relations. State v. Moxley, 102 Mo. 374; State v. Leabo, 84 Mo. 168; State v. Watkins, 9 Conn. 47; State v. Green, 35 Conn. 205. (c) Instruction numbered 23 was erroneously refused by the court, and no instruction covering the law therein declared was given by the court. State v. Moxley, 102 Mo. 388. (d) The court committed error in refusing instruction numbered 20, asked by defendant. Spies v. People, 12 N.E. 865. (11) (a) The motion for new trial should have been sustained on the ground of newly discovered evidence. The affidavits disclose newly discovered evidence which is not cumulative. State v. Murray, 91 Mo. 103; State v. Bailey, 94 Mo. 315; State v. Moberly, 121 Mo. 604; Longdon v. Kelly, 51 Mo.App. 572; 16 Am. and Eng. Ency. of Law, 575; State v. Bailey, 94 Mo. 315; Howland v. Reeves, 25 Mo.App. 466. (b) The newly discovered evidence, being a new kind of evidence tending to prove the insanity of the defendant at the time of the killing is material and relevant. Howland v. Reeves, 25 Mo.App. 466. (c) A sufficient reason appears why defendant did not and could not make affidavit in support of new trial and that his attorneys might make such affidavit. State v. McLaughlin, 27 Mo. 111; State v. Nagel, 136 Mo. 50. (d) If it be doubtful how the newly discovered evidence would affect the result, the motion for new trial should be sustained. State v. Bailey, 94 Mo. 316.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) Defendant, in his motion for arrest of judgment leveled an objection against the legality of the indictment on the ground that it was returned by a grand jury that was organized and impaneled on a day designated by law as a legal holiday. The objection is of no force. The law creating public holidays does not prohibit courts from transacting judicial business on such days, as such statutes and proclamations are considered as mere recommendations that no labor be done or business transacted thereon. Pierson v Richardson, 1 Cliff. 386. (2) Defendant in the motion for a new trial alleges that error was committed by the trial court in overruling his challenges for cause of certain jurors. The record fails to disclose an objection to the competency of these men, or any one of them as jurors in the case. Such objection must be made before trial commences, else defendant's lips will be closed to any error that may be committed. (3) The mere fact that jurors have read newspaper accounts of the commission of a crime and have formed opinions from such reading, which readily yield to the evidence in the case, does not disqualify them as jurors. State v. Hunt, 141 Mo. 630; State v. Duffy, 124 Mo. 1; State v. Williamson, 106 Mo. 162; State v. Bryant, 93 Mo. 273. (4) No error was committed by admitting in evidence the letters written by defendant. The evidence was not only sufficient to show that they were written by him, but shows an admission upon his part that he did write them. There was also evidence introduced to the effect that the letters were written on "bill-heads" belonging to defendant, and they were found in his dwelling-house; in other words, practically in his possession, all of which are circumstances which point to the fact and tend to prove that they were instruments of his own writing. This evidence was certainly sufficient to create the presumption that they were the act of the defendant and in the absence of proof to the contrary the presumption becomes conclusive against him. And the evidence of W. M. Hodges is, we think, sufficient to justify their admission. No objection was made by defendant's attorneys upon their introduction, and without having made such objection his right to object will be considered as waived. Kloes v. Wurmser, 34 Mo.App. 453; Publishing Co. v. Emerson, 64 Mo.App. 662. (5) While a nonexpert may relate facts indicating insanity without giving an opinion himself as to defendant's mental condition, yet such facts must be of such character as tend to show either sanity or insanity, as the case may be, and before a witness will be permitted to give opinion as to whether or not the defendant was sane or insane he must qualify himself by stating to the jury such facts as will enable the jury to know or to determine whether or not he had sufficient acquaintance with the defendant and was in such position as would enable him to properly judge from the actions, conduct and general demeanor of the defendant as to whether he was sane or insane. In the case of the testimony of the witness McDonald, it was shown that he was not acquainted with defendant, having never seen him before. He was in no condition to state sufficient facts upon which to base a finding or opinion of any kind, and the facts stated by him were of the ordinary kind pertaining to single transactions between strangers. If the witness, by reason of his testimony, disqualifies himself by stating that he was not well acquainted with the defendant, and by showing that he was not in a position to give facts that would warrant an opinion from him, no error can be committed by or imputed to the trial court in excluding his testimony. State v. Klinger, 46 Mo. 224; Appleby v. Brock, 76 Mo. 314; Moore v. Moore, 67 Mo. 192. (6) An attempt was made by defendant to show by his mother, Mrs. Sarah Soper, that one Mrs. Nannie Messick, a cousin to defendant's father, who formerly lived at Liberty, Missouri, and who at the time of this trial lived in Kentucky, and with whom the witness was acquainted, was at one time an inmate of an insane asylum. This question was objected to by the State and sustained and her answer stricken out. Such testimony is restricted to the declarations of deceased persons who were related by blood or marriage and who are known to be dead. We submit that so long as the person charged with being an inmate of an asylum at some previous time, is living, hearsay evidence and general belief, in fact, the rumors among her relatives, is not admissible in support of proof thereof. Doe v. Griffin, 15 East. 293. It has been said upon...
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