Vawter v. Hultz

• Decision Date: 12 December 1892
• Parties: VAWTER v. HULTZ.
• Court: Missouri Supreme Court

20 S.W. 689

112 Mo. 633

VAWTER v. HULTZ.

Supreme Court of Missouri, Division No. 1.

December 12, 1892.

DEPOSITIONS — PLACE OF TAKING NOTICE — ARGUMENT OF COUNSEL — DEATH BY WRONGFUL ACT — EVIDENCE OF CHARACTER.

1. The notice for taking certain depositions stated that they would be taken at "the law office of C. H. Gordon and E. M. Bass, in the town of Columbia, in the county of Boone and state of Missouri." The certificate of the notary public who took them stated that in pursuance of the notice the depositions were taken "at the office of Bass & Gordon, in the county and state aforesaid." The office of Bass & Gordon was shown by the caption of the certificate to be the office of C. H. Gordon and E. M. Bass, in the county of Boone, in the state of Missouri. Held, that a motion to suppress the depositions on the ground that it did not appear they were taken at the place required in the notice was properly overruled, since it would be presumed that the office spoken of in the certificate was the law office of the parties mentioned, and that such law office, being in the prescribed county and state, was also in the town of Columbia, as required by the notice.

2. In an action to recover damages for the wrongful killing of plaintiff's husband, plaintiff's attorney, in his opening statement of the case to the jury, said "that this case was instituted in Boone county, and by defendant brought here by change of venue." Held, that the statement could not be prejudicial to defendant, as no reason for the change was given.

3. It was not error to exclude evidence offered by defendant to prove his general reputation as an honest, peaceable, and law-abiding citizen.

4. Defendant was examined as a witness in his own behalf, and was asked with what purpose he drew his pistol and fired the fatal shot, and replied, "To protect my life and person." Held, that defendant's answer, being a mere declaration that he shot in self-defense, which was the question the jury were to determine, was properly stricken out.

5. The recovery of damages under Rev. St. 1889, § 4426, which gives an action for "the death of a person, caused by the wrongful act of another," is not limited to cases where the jury find that defendant was guilty of murder in the first degree.

Appeal from circuit court, Randolph county; JOHN A. HOCKADAY, Judge.

Action by Bettie Vawter against Marshall J. Hultz to recover damages for the alleged wrongful killing of plaintiff's husband. From a judgment for plaintiff, defendant appeals. Affirmed.

Turner & Boulware, for appellant. Odon Guitar, for respondent.

BRACE, J.

This is an appeal by the defendant from a judgment of the circuit court of Randolph county in favor of the plaintiff for the sum of $5,000 damages assessed by a jury against the defendant, in an action brought by the plaintiff in the circuit court of Boone county against him for wrongfully killing her husband, Allen Vawter, and by the defendant taken thence to Randolph county by change of venue. The homicide was committed on the 7th of May, 1888. The defendant was criminally prosecuted therefor, and found guilty of murder in the second degree, in the Boone circuit court; and on appeal to this court the judgment of the circuit court was affirmed at the April term, 1891. State v. Hultz, 106 Mo. 41, 16 S. W. Rep. 940. The errors assigned and relied on for reversal will be noticed in their chronological order.

1. Before the trial, defendant moved the court to suppress the depositions of certain witnesses, taken in behalf of the plaintiff, on the ground that he was not present at the taking, and that it does not appear from the certificate of the officer that the depositions were taken at the place designated in the notice, or that they were taken by an officer authorized to take them. The notice was that the depositions would be taken at "the law office of C. H. Gordon and E. M. Bass, in the town of Columbia, in the county of Boone and state of Missouri, on the 25th day of February, 1890, between the hours of 8 o'clock in the forenoon and 6 o'clock in the afternoon of that day," etc. The depositions purporting to have been taken in pursuance of this notice were authenticated as follows: "Depositions of witnesses produced, sworn, and examined on the 25th day of February, 1890, between the hours of eight o'clock in the forenoon and six o'clock in the afternoon of that day, at the office of C. H. Gordon and E. M. Bass, in the county of Boone and state of Missouri, before me, W. H. Truitt, a notary public, in a certain cause now pending in the circuit court of Randolph county, in the state of Missouri, between Mrs. Bettie Vawter, plaintiff, and Marshall Hultz, defendant. On the part of plaintiff." Following this caption were the depositions of the witnesses in the order taken. At the foot of each the witness signed his name, and to each the officer, beneath the signature of the witness, appended the following jurat: "Subscribed and sworn to before me [naming the day] at the place and between the hours aforesaid. W. H. TRUITT, N. P.," — and attached his notarial seal. At the foot of all the depositions the notary appended his certificate, as follows: "I, W. H. Truitt, a notary public within and for the county of Boone, in the state of Missouri, do certify that, in pursuance of the annexed notice, came before me, at the office of Bass & Gordon, in the county and state aforesaid, [naming all the witnesses,] who were by me severally sworn to testify the whole truth of their knowledge touching the matter in controversy aforesaid, and that they were examined, and their examination reduced to writing, and subscribed by them, respectively, in my presence, on the day, between the hours and at the place, in that behalf aforesaid, and that their depositions are now herewith returned; and I further certify [naming all the witnesses again] are residents of said county of Boone, in the state of Missouri. Given at the office of Bass & Gordon, in the county of Boone, in the state of Missouri, this 4th day of March, A. D. 1890. [Notarial...