The State v. Tarwater
| Decision Date | 20 March 1922 |
| Citation | 239 S.W. 480,293 Mo. 273 |
| Parties | THE STATE v. HUGH Y. TARWATER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Daviess Circuit Court. -- Hon. Arch B. Davis, Judge.
Affirmed.
John C Leopard & Son. W. W. Davis and Dudley & Brandom for appellant.
(1) The record of the admission of William A. Tarwater, the father of the defendant, in the Fulton Asylum in 1885, should have been admitted as part of the record of the mental history of the defendant and his ancestors. (2) The statute in force at that time (R. S. 1909, sec. 1415) provides for the keeping of records and that certain statements shall be kept and preserved as a part of the record of inmates of the asylum. There is every presumption of honesty, accuracy and good faith in the preservation and keeping of records of institutions of this character. 2 Wharton, Crim. Ev. 1107 sec. 528; Wharton, Ev. secs. 72-170, 172; 2 Wigmore, Ev secs. 1420 to 1426. (3) The record of the two admissions of the defendant to the Asylum at St. Joseph in 1896, excluded by the court, should also have been admitted in evidence for similar reasons. It describes his condition while there. It showed his symptoms -- the very things the jury would want to know as a test of his mental condition. 2 Wharton's Crim. Ev. 1092, sec. 526. (4) The article published and printed in the Gallatin Democrat on May 30, 1918, entitled, "Will He Help Raise Hell?" which the court refused to admit in evidence, was the very thing that started the trouble. It was the foundation for all the subsequent articles the publication of which caused the defendant's mind to become unbalanced, and this article, more than any other, was entitled to go to the jury for their consideration on the question of the defendant's mental condition at the time. I Wigmore, Ev. sec. 231, p. 287; p. 280, par. 4, sec. 228. In all inquiries relating to insanity every reasonable latitude should be allowed. De Jarnette v. Comm., 75 Va. 867. All previous mental and physical history of the accused is relevant, as the inference of insanity must rest upon many facts. Underhill, Crim. Ev. 199, sec. 159. Great latitude is allowed where the defense is insanity. Evidence of anything and everything which in some substantial way would tend to show defendant's nervous organization was affected should be admitted. State v. Porter, 213 Mo. 63. (5) The letter written by witness R. J. Ball to Attorney Thomas H. Hicklin, should also have been admitted in evidence for a similar reason. (6) The numerous articles published in the Gallatin Democrat offered in evidence by the defendant and refused by the court should have been admitted in evidence. (7) The evidence of family history, family tradition, as to the insanity and mental weakness of various members of the Tarwater family offered by the defendant in the deposition of witness Sally Abbington, Ann Bishop, and excluded by the court should have been admitted. (8) The petition and answer in the libel suit wherein the defendant was plaintiff against Wes L. Robertson and Robert J. Ball, publishers of the Gallatin Democrat, was admissible, and the court erred in refusing to admit it. (9) The record of the malicious prosecution suit of Hugh Y. Tarwater, against John W. Scudder & Co., and the disposition of that case, in the Circuit Court of St. Louis County in 1895, and the record of the acquittal of the defendant in Jefferson County should have both been admitted in evidence. (10) This testimony by witness Buzard had no place in the case and should not have been admitted in the first place, and after this prejudicial evidence had gone in, the defendant was entitled to explain by showing the court records of his acquittal and of the result of the malicious prosecution suit. (11) There was misconduct on the part of the court, counsel for State and friends and relatives of the deceased during the trial. Senn v. Railroad, 108 Mo. 142; Turner v. Harr, 114 Mo. 335; Mammenberg v. St. Ry. Co., 62 Mo.App. 567; Hahn v. Hammerstein, 272 Mo. 262; 22 Cyc. 710. (12) The motion for new trial should have been sustained, not only for errors referred to, but because the verdict was manifestly the result of passion, prejudice and pressure of public sentiment and not warranted by the evidence.
Jesse W. Barrett, Attorney-General, and Henry Davis, Assistant Attorney-General, for respondent.
(1) The so-called record of the admission of the appellant's father to an insane asylum was properly excluded. The records were not required by law to be kept. Sec. 12283, R. S. 1919; State v. Baker, 246 Mo. 373; In re Barney, 174 N.Y.S. 242; 10 R. C. L. sec. 339. (2) Cumulative evidence on the subject of insanity is unnecessary. State v. Baker, 246 Mo. 357. (3) The exclusion of the record of the two admissions of appellant to an insane asylum was likewise not error. (4) The publications in the newspaper owned by the deceased were properly excluded. Words, however provocative, do not justify an assault. State v. Finley, 245 Mo. 465; State v. Meyers, 221 Mo. 598; State v. Morris, 263 Mo. 348; State v. Porter, 213 Mo. 57. (5) It was not error to exclude the letter written by witness Ball to attorney Hicklin. Its purpose could have been only for showing a feeling by Ball against appellant and that was shown by other evidence. (6) The evidence of family history was hearsay and properly excluded. State v. Church, 199 Mo. 605; State v. Punshon, 124 Mo. 448; State v. Bauerle, 145 Mo. 1. (7) It was not error to exclude the pleadings in the libel suit brought by appellant against Robertson and Ball and the pleadings in the damage suit brought by the widow of the deceased against appellant for the death of her husband. The one could have been self-serving only and the other was as to a matter occurring after the offense for which appellant was on trial had been committed. (8) The testimony of witness Buzzard to statements made by appellant as to claiming insanity in the event that he should commit another crime was competent and material. State v. Bruant, 93 Mo. 299; State v. Stevens, 242 Mo. 439; Waller v. United States, 179 F. 810; 16 C. J. p. 555, sec. 1074; State v. Moreaux, 254 Mo. 398. (9) The exhibition of the clothing worn by the deceased at the time of the killing was proper for the purpose of showing the position of the deceased. State v. Wieners, 66 Mo. 29; State v. Buchler, 103 Mo. 208; State v. Long, 209 Mo. 382. (10) In a hypothetical question, counsel has the right to assume the facts to be according to his theory of them. State v. Privitt, 175 Mo. 225; State v. Ferguson, 278 Mo. 136. (11) The position of the family and friends of the deceased at the trial is not shown in the record, no objections were made thereto and the point was not saved for review. The showing cannot be made by affidavits. State v. McAffee, 148 Mo. 370; State v. Grant, 144 Mo. 66; State v. Feeley, 194 Mo. 315. (12) The record shows that the appellant was present throughout the trial. If the record shows his presence at the beginning it is presumed to continue. Sec. 4008, R. S. 1919; State v. Temple, 194 Mo. 628; State v. Feeley, 194 Mo. 300; State v. Church, 199 Mo. 379; State v. Beedle, 180 S.W. 890. There was no exception taken to the failure of the court to make a ruling when counsel suggested that appellant had been absent. The point was not, therefore, saved for review. State v. Armstrong, 167 Mo. 257; State v. Hawkins, 210 S.W. 7. (13) The mere fact of the separation of the jury will not invalidate a verdict when it is shown that no juror was subjected to improper influence. State v. Orrick, 106 Mo. 124; State v. Spaugh, 200 Mo. 608; State v. Prince, 258 Mo. 328. The affidavits of the sheriff and his deputy and each of the jurors are sufficient to overcome the presumption that the jury was tampered with. State v. Schafer, 172 Mo. 335. It is not a separation of the jury for one of them accompanied by the officer in charge, to walk ten or twelve feet behind the file of the others. State v. Shipley, 171 Mo. 544. (14) The verdict was warranted by the evidence and is not the result of passion and prejudice.
On the 23rd day of December, 1919, appellant went to the editorial and business office of the Gallatin Democrat in Daviess County, Missouri, 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 thirty-five 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.
I. 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, Missouri, 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 thereof. Appellant relies on the provisions of Section 12283, Revised Statutes 1919, as sufficient to authorize such records to be made and kept. This statute was in force in 1885 and is as follows:
"There shall be sent with each patient a detailed account of his...
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