The State v. Warren

• Decision Date: 13 July 1927
• Docket Number: 27397
• Parties: The State v. Roscoe F. Warren, Appellant
• Court: Missouri Supreme Court

297 S.W. 397

317 Mo. 843

The State v. Roscoe F. Warren, Appellant

No. 27397

Supreme Court of Missouri

July 13, 1927

Appeal from Jackson Circuit Court; Hon. O. A. Lucas, Judge.

Reversed and remanded.

Ira B. McLaughlin for appellant.

(1) The court erred in excluding relevant, competent and material evidence, consisting of the impressions and opinions of lay witnesses as to basic facts concerning the acts, conduct and mental and physical condition of the defendant. State v Porter, 213 Mo. 43; Chenoweth v. Sutherland, 141 Mo.App. 272; McKelvey on Evidence, Hornbook Series (3 Ed.), p. 260, sec. 137; State v. Speyer, 194 Mo 459; State v. Buechler, 103 Mo. 203; State v Myers, 198 Mo. 225; State v. Stewart, 274 Mo. 649, 204 S.W. 10; State v. Ferguson, 278 Mo. 119, 212 S.W. 339; State v. Comer, 296 Mo. 1, 247 S.W. 179; Hartman v. Fleming, 264 S.W. 873; Godfrey v. Light & Power Co., 299 Mo. 472, 253 S.W. 233; Roach v. Railways Co., 228 S.W. 250; Lilly v. Railways Co., 209 S.W. 969; State v. Ramsey, 82 Mo. 133; Rearden v. Railroad, 215 Mo. 105; Commonwealth v. Borasky, 214 Mass. 313; Nash v. Hunt, 116 Mass. 237, 251; Green v. State, 64 Ark. 523; Cicero & Proviso St. Ry. v. Richter, 85 Ill.App. 591; Raisler v. Springer, 38 Ala. 703, 82 Am. Dec. 736; Reeves v. States, 96 Ala. 33; Martin v. State, 90 Ala. 602, 24 Am. St. 844; La Plante v. Cotton Mills, 165 Mass. 487; Vannest v. Murphy, 112 N.W. 236, 135 Iowa 123; Burney v. Torrey, 100 Ala. 157, 46 Am. St. 35. (2) The court erred in excluding from the jury competent, relevant and material evidence concerning: (a) The acts and conduct of Housh and Clubb at Pahaska teepee and the effect thereof upon the defendant's nervous organization; (b) the report made to the defendant by his son, relative to the activities of Housh and Clubb at Kansas City, which were adverse to the defendant and his business interests and the effect of said report upon defendant's nervous organization. State v. Porter, 213 Mo. 43; State v. Liolios, 285 Mo. 1, 225 S.W. 946; State v. Kring, 64 Mo. 591; State v. Flanney, 112 P. 630, 61 Wash. 482. (3) The court erred in striking out and instructing the jury to disregard the entire testimony of the witness Carlson. State v. Flanney, supra. (4) The court erred in excluding evidence tending to prove that four members of the defendant's immediate family suicided. 7 Ency. Evidence, p. 446, sec. 1 B; 1 Wharton & Stille's Medical Jurisprudence, sec. 669; 5 Wigmore on Evidence (2 Ed.) sec. 2500; Ritter v. Life Insurance Co., 69 F. 505; Frary v. Gusha, 59 Vt. 257; State v. Simms, 68 Mo. 305; 3 Wigmore on Evidence (2 Ed.) secs. 1502, 1501; R. S. 1919, sec. 5816; Simpson v. Wells, 292 Mo. 301, 237 S.W. 520; Griffith v. Continental Cas. Co., 299 Mo. 426, 253 S.W. 1043; Connecticut Mutual Life Insurance Co. v. Akens, 1509 U.S. 468.

North T. Gentry, Attorney-General, and A. M. Meyer, Special Assistant Attorney-General, for respondent.

(1) The court did not err in excluding the conclusions of witnesses, drawn presumably from their observations, as to the characteristics or apparent mental condition of defendant at certain times. (a) All of the evidence excluded, was cumulative only. State v. Lamb, 141 Mo. 298, 21 A. L. R. 336 n; State v. Whitten, 68 Mo. 92; State v. Miles, 253 Mo. 427. The defendant was not therefore, prejudiced by its exclusions, even if it was admissible. State v. Morris, 263 Mo. 349. (b) The evidence excluded was not of the type of conclusions which must be legally considered as basic facts, but were conclusions in the legal and in the popular senses. State v. Schlichter, 263 Mo. 578; State v. Evans, 267 Mo. 163, 183; State v. Kozlicki, 241 Mo. 301, 306; State v. Bronstine, 147 Mo. 520; State v. Wertz, 191 Mo. 569; State v. Davis, 225 S.W. 709; State v. Morris, 263 Mo. 339. (2) The court did not err in excluding from the jury acts and conduct of witnesses Housh and Clubb at Pahaska Camp during the summer of 1924, nor the report made to the defendant by his son relative to the activities of these witnesses at Kansas City. (a) These activities and acts, if any, were too remote in point of time. State v. Tarwater, 293 Mo. 286. (b) They were not relevant to the question of defendant's ability to distinguish right from wrong at the time of the homicide. The question is not what made defendant insane, but was he insane? State v. Morris, 263 Mo. 348. (c) As to the communicated threats, offered to be proved by defendant's son, the doctrine has no application to the defense of insanity although it might be competent on the issue of self-defense. Again the relevant inquiry is not, what caused the defendant's mental condition, but, whether or not it existed at the time of the crime? State v. Morris, 263 Mo. 348. (3) The defendant was not harmed by the withdrawal of the testimony of the witness Carlson from the consideration of the jury. His testimony had no tendency to show that defendant was insane; neither did the witness show any intimate acquaintance with defendant, testifying that he saw defendant two or three times a year. State v. Soper, 148 Mo. 234. (4) The court permitted defendant to testify as to his mother's death from nervous diseases and melancholia. It having been shown that defendant was not present at his father's death, he was not permitted to testify as to what he had been told concerning him. Offered evidence, showing the cause of death of an uncle and cousin on his mother's side, was excluded. No offer to show the cause of death of defendant's brother was made. Even direct proof of hereditary insanity in an uncle and a cousin of defendant, would not be admissible, because insanity of collateral ancestors or relatives is not proof of insanity in the defendant. State v. Baker, 246 Mo. 373; State v. Soper, 148 Mo. 234; State v. Pagels, 92 Mo. 307. As to all of the four instances mentioned, the testimony offered was hearsay and properly excluded as such, since the fact of insanity, whether of defendant or of members of his family, is not within the pedigree exception to the hearsay rule and may not be proved by hearsay testimony. 16 C. J. secs. 1236, 1238, p. 625; State v. Charles, 124 La. 744, 18 Anno. Cas. 934; State v. Brooks, 6 Ga. 292; State v. Penna, 35 Mont. 536, 90 P. 790; State v. Lagoni, 30 Mont. 482, 76 P. 1044; People v. Koerner, 154 N.Y. 355; Bruce v. State, 72 Tex. Crim. 221, 162 S.W. 874. The exhibits offered, purporting to be the records of various institutions in other states, were properly refused because it was not shown that they were records kept and required to be kept under the laws of the respective states. The statutes should have been offered in evidence. State v. Pagels, 92 Mo. 310; State v. Tarwater, 293 Mo. 281.

Blair, J. White, P. J., concurs; Walker, J., dissents.

OPINION

BLAIR, J.

Appellant was convicted of murder in the second degree; was sentenced to imprisonment for fifteen years, in accordance with the verdict of the jury, and appealed to this court.

Appellant shot John C. Deskins with a German Luger pistol at a meeting of the trustees of the Mutual Rocky Mountain Club, held in one of the offices of the Scarritt building in Kansas City, on October 13, 1924. Thereupon appellant fired a shot into his own body, inflicting a dangerous wound near the heart, in an unsuccessful attempt to take his own life. Deskins died two days later as a result of said shooting.

The facts immediately attending the shooting are not in dispute. The sole defense offered was the alleged insanity of the appellant. Most of the voluminous record is filled with testimony bearing upon the issue of the mental responsibility of appellant at the time of the shooting. No contention is made in this court that the evidence was not sufficient to support the verdict of the jury. Nor is complaint made of the sufficiency of the indictment or the verdict or the propriety of the judgment rendered thereon, save as the judgment is attacked on the ground of alleged procedural errors. Even the instructions are not assailed in the brief of able counsel representing appellant in this court.

The testimony of appellant and his witnesses tended to show that, as a child of three, he suffered brain fever. He was twice kicked on the head by horses while a small child and suffered concussion and protracted unconsciousness. He suffered excessively from headaches from childhood to the time of the homicide, and much of the time could only get relief by having his father or others press both hands against the sides of his head. He sometimes even had spasms. During his spells of headache, appellant was confined to a darkened room and demanded absolute quiet. The evidence tended to show malformation of appellant as to head, ears and hands. This fact was pointed to by appellant's insanity experts as some evidence of paranoia. The State's experts, on the other hand, repudiated the evidentiary value of such facts.

Appellant's father died as the result of self-administered poison when appellant was thirteen years old. His mother died as a result of melancholia and headaches. Proof was offered tending to show that certain blood and collateral relatives committed suicide, but the same was excluded.

Appellant was forty-five years of age at the time of the trial. At seventeen years of age he became a messenger in a bank and made some advancement. At twenty-one years of age he went to North Dakota and lived on a claim. At twenty-two he became assistant cashier in a bank. Thereafter he married and became the father of two sons, both being alive at the time of the trial. Afterwards he attempted, but failed, to organize a bank. He later succeeded in organizing a bank at Gardiner, Montana, and became its cashier. He held that position three or four years. After trouble with one of...