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treatment of dealings between trustee and the cestui que trust, or the fiduciary with his beneficiary, than with strangers, except in the manner and burden of proof when the dealing is assailed in a proper proceeding, charging to the trustee or fiduciary unfairness or fraud. Under these circumstances the burden is upon the trustee or fiduciary to show that the transaction was open, fair, honest, and free from fraud on his part, whereas, in all other cases, he who alleges and charges unfairness or fraud must prove it. This rule holds good when any transaction, whether of sale or settlement, involving the conduct of a trustee or fiduciary, is called in question. The law imposes the burden of proof upon the trustee to show that his conduct was open, fair, and free from fraud or suspicion. Having full charge of the estate, whether of money or property, he alone is supposed to know all about its situation, condition, and value; and, at the settlement or sale and purchase by him of the estate, he is required to make a full, fair, and open disclosure of all things regarding the estate in his hands at the time. We have examined all the authorities cited by the appellant in support of this contention, as well as those cited by the court of appeals in support of its judgment, and find that they go no further than to announce that a trustee or fiduciary cannot purchase at his own sale, nor speculate or make profits out of the trust fund or estate in his hand,-propositions not disputed nor involved in the discussion of the case now before us for determination. The two propositions here involved are: Can a trustee or fiduciary deal with or purchase from his cestui que trust or beneficiary funds in his hands, which up to the time of sale have been preserved intact and undisturbed? And, second, if so, can the sale be questioned in an action at law, when the evidence of the transaction has been reduced to writing, and that writing interposed as a defense to a suit to recover the proceeds named in and adjusted by said writing? It follows from what has been said that the trial court properly refused the instruction as asked by plaintiff, and that the judgment of that court was for the right party, and should be affirmed; and the cause is remanded to the St. Louis court of appeals, with directions to enter a judgment to that effect.

BARCLAY and MACFARLANE, JJ., concur in the result. BRACE, C. J., dissents.

STATE v. DAVID. (Supreme Court of Missouri, Division No. 2. Dec. 3, 1895.) HOMICIDE-EXAMINATION OF JURORS-EXCLUSION OF WITNESS-EXPERT WITNESS-PROOF OF SIGNATURE-VOLUNTARY TESTIMONY-EFFECT OF DOUBT

POISON-DELIBERATION-REASONABLE

MOTIVE-CIRCUMSTANTIAL EVIDENCE.

. 1. An objection that an improper question was asked of the entire panel on their voir dire comes too late for the first time on appeal.

2. An inquiry by the court as to whether jurors would be willing to convict on circumstantial evidence alone is not ground for reversal.

3. Jurors stating that they had conscientious scruples against the infliction of the death penalty, and that they would not render a verdict of guilty knowing that the penalty would be death, were properly excused, though they did not say that their opinion would preclude such a verdict.

4. The discretion of the trial court in permitting a witness, who was present during the trial, to compare two signatures in a trial for murder, though all other witnesses were excluded from the court room, will not be disturbed on appeal.

5. The decision of the trial court in allowing a comparison of signatures to be made by one who was devoted to clerical pursuits, and who stated that he had a peculiar faculty in distinguishing handwriting, will not be disturbed on appeal.

6. Where it was shown that the evidence at an inquest was reduced to writing, and the record thereof, containing defendant's testimony, with his name subscribed thereto, was filed with the clerk, and by him identified, and was offered in evidence without objection, it is a paper in the case for the purpose of comparing defendant's signature, though said signature was not otherwise proved.

7. Defendant's testimony at an inquest will be presumed to be voluntary, in the absence of proof to the contrary.

8. It was competent for a witness to state how deceased acted at the time he was said to be poisoned.

9. The court may refuse to compel the state to call the eyewitnesses of the homicide who were before the grand jury, and who were in court.

10. On a trial for murder committed by poisoning, deliberation was properly defined to mean "done in a cool state of the blood, and not done in a sudden passion, engendered by a lawful or just cause of provocation.'

11. It was not necessary to tell the jury what a "just cause of provocation" is, there being no evidence requiring such instruction.

12. An instruction that a reasonable doubt is a substantial doubt of defendant's guilt, founded and based upon the evidence and all the facts and circumstances proven in the case and not a mere possibility of innocence; that, if the jury were not morally certain as to defendant's guilt or innocence, then a reasonable doubt exists,-was proper.

13. It was not error to charge that, if defendant committed the murder, he was guilty, whether a motive for the crime was apparent or not.

14. After the court had defined the essentials of the crime, mere reference "to the crime charged in the indictment" was not prejudicial.

15. An instruction on circumstantial evidence, that the facts and circumstances tending to prove defendant's guilt must be consistent not only with any rational theory but that of defendant's guilt, but must be inconsistent with any rational hypothesis consistent with his innocence, was proper.

Appeal from circuit court, Osage county; Rudolph Hirzel, Judge.

Emile David was convicted of murder in the first degree, and appeals. Affirmed.

The jury were instructed as to the meaning of "reasonable doubt" and "deliberation" as follows: "And if, upon a view of the whole case, you have a reasonable doubt of the guilt of the defendant, you will acquit him; but such a reasonable doubt as mentioned in these instructions, and which will authorize an acquittal on that ground, must be a sub

stantial doubt of defendant's guilt, founded and based upon the evidence and all the facts and circumstances proven in the case, and not a mere possibility of innocence. If, however, the whole evidence in the case leaves your minds in such condition that you are neither morally certain of the defendant's guilt nor morally certain of his innocence, then a reasonable doubt exists, and in such case you should give the defendant the benefit of such doubt, and acquit him." "Deliberation" means "done in a cool state of the blood, and not done in a sudden passion, engendered by a lawful or just cause of provocation." To the giving of which instructions defendant duly excepted.

The defendant was indicted and convicted in the circuit court of Osage county, at the December term, 1894, of the murder of Frank Henderson by administering to him strychnine in a drink of whisky on the morning of January 8, 1894. From that conviction he prosecuted this appeal. The testimony discloses the facts that the deceased and his parents, during January, 1894, lived in Osage county, about 10 miles from Chamois; that the defendant, with his parents, resided in Osage county, between the home of the deceased and Chamois; that on the morning of the 8th of January the deceased started afoot to go to Chamois; that he arrived at the home of the defendant about daylight, where he stopped. Upon his arrival he remarked that he was cold, whereupon defendant invited him to take a drink of whisky, which he did, and almost immediately thereafter was taken with violent cramps, and died within an hour and a half. After drinking the whisky, the deceased had every symptom of being poisoned. The coroner was sent for, came, attended by two physicians, and made a post mortem examination, inspected his internal organs, removed the stomach, placed it in a sealed jar, and delivered it to Prof. Chas. S. Sanger, a professor of chemistry in St. Louis. Dr. Mahon, who assisted the coroner in the post mortem examination, testified that the deceased died from the effects of poison strychnine taken or administered to him. The testimony of Dr. Townley was in substance the same as that of Dr. Mahon. Prof. Sanger testified that he made a chemical examination of the stomach, and found that it contained five-sixths of a grain of strychnine, and that this amount was sufficient in quantity to destroy human life. It is further shown that when the deceased was taken with the cramps he was sitting by the stove in the kitchen, talking to Miss Lily David, a sister of defendant, with whom he was in love; that he was removed upstairs, and in the presence of the defendant stated that the defendant had given him a drink of white whisky, which tasted bitter, and left a taste something like quinine in his mouth, which he could not get rid of. One of the state's witnesses, Emmett Crow, testified that some time prior to the death of Henderson he had

seen a bottle of strychnine in defendant's trunk. Mr. A. Brandenberger testified: That in November prior to the death of Henderson he had sold a quantity of strychnine to some one representing himself to be E. Davis. That he kept a poison record, upon which he entered the sale of all poison. His poison record showed the following: "November 1, at 11 a. m., strychnine, one drachm; to kill rats. Going to use it myself. E. Davis. Residence, Osage county. '93." That he could not identify defendant. That the signature in his poison register was made by the person who bought the poison. At the coroner's inquest the defendant was sworn and testified, and his evidence was written down by Mr. Giddinhagen, the sheriff of the county. After it was written out, it was read over by Giddinhagen to the coroner, who could neither read nor write. The coroner, as required by law, returned all the evidence taken down, together with the verdict of the jury, to the county clerk, who identified the papers at the trial. After their identification by the county clerk, they were offered in evidence, without objection on the part of defendant. The testimony of each witness as taken at the inquest purported to be signed by himself. The name of defendant was appended to his evidence thus returned. No objection was made because the signatures had not been first proven, or for any other reason whatever. J. Rhey McCord, Esq., was sworn as an expert, and testified that in his <pinion the signature to the defendant's evidence before the coroner was written by the same person who signed the poison record kept by the pharmacist, Mr. Brandenberger. The testimony on the part of the defendant tended to establish a good reputation for the defendant, and a bad reputation for the state's witness Emmett Crow. It is also shown by the defendant that he was in Jefferson City on the 1st of November, the same date on which the strychnine was sold by Mr. Brandenberger. The David family testify that the deceased stated that he had taken a drink of whisky given by defendant out of a white, druggy bottle; and Mrs. O'Doud testified that just before the death of Henderson, and while he was sick, she took a drink of whisky out of a white bottle, which was said to be of the same whisky given to deceased. It is also shown that the deceased was in love with Lily David. She testified that, while her father objected to the attentions of the deceased, the defendant did not. She also testified that she had frequently been in the trunk of the defendant, had seen tools, bottles of musk and perfumery; but she does not say that she did not see strychnine, as testified to by Crow. The defendant testified in his own behalf. Denied that he purchased the poison as shown by Brandenberger's register. Does not remember the dates of his visits to Jefferson City. Admits having given the deceased a drink of whisky, but says there was nothing in the bottle but

whisky. Says that he and his father and Mrs. O'Doud took a drink out of the same bottle after deceased became sick. Denies that he had any strychnine in his trunk, and testifies that he and the deceased were good friends. It also appears from the testimony that while the deceased was sick he was given a drink of red whisky, which was secured, not out of a white bottle, but out of a jug downstairs, and given in a tin cup. Other facts may appear in the course of the opinion.

I. W. Boulware, for appellant. R. F. Walker, Atty. Gen., and Morton Jourdan, for the State.

GANTT, P. J. (after stating the facts). 1. The court asked the entire panel, on their voir dire examination, if they would find a verdict of murder in the first degree upon circumstantial evidence if it was sufficient, premising that he understood the state would perhaps not be able to prove by direct testimony who did the poisoning or mixing the poison administered to Frank Henderson. It is now for the first time objected that this question was improper, in that it assumed that Henderson was poisoned. The exception comes too late; but, if it had been timely, in view of the overwhelming testimony that Henderson was poisoned, the judgment would not be reversed for this reference alone.

Several of the jurors also stated they had conscientious scruples against the infliction of the death penalty; that they could not and would not render a verdict of guilty knowing the penalty would be death. Much stress is laid upon the form of the question and the answer that they did not say their opinions would preclude such a verdict. The whole examination disclosed very clearly that such was their conviction, and no error was committed in excluding these jurors. Equally untenable is the point now urged to the exclusion of other jurors because their opinions were formed merely from rumors and newspaper reports. The record does not sustain this assignment. The court seems to have been very patient and careful to obtain an impartial jury.

2. The objection to the ruling permitting J. Rhey McCord to testify because he had been in the court room during the trial is without merit. The record does not show any order excluding the witness, and, if it did, the discretion of the trial court will not be interfered with because it made this exception. Mr. McCord was called simply to compare two signatures, and if he had heard all the evidence it would not have aided him in forming his opinion as an expert on handwriting. State v. Whitworth (Mo. Sup.) 29 S. W. 595. Neither do we consider he was incompetent to testify as an expert. His qualification was a preliminary question for the determination of the circuit court. It appeared that the larger portion of his life had been devoted to clerical pursuits, such as cashier of a bank, clerk

of the court for eight years, deputy collector of taxes, and prosecuting attorney. The witness himself felt that he had a peculiar faculty in distinguishing handwriting. Nothing whatver appeared to the contrary. The deciIsion of the trial court will not be disturbed under such circumstances.

The most serious and important question in this record, however, does arise in connection with Mr. McCord's testimony. He was called upon to compare the signature to the evidence of the defendant taken at the coroner's inquest with the signature to the poison record kept by the druggist Mr. Brandenberger. When the two signatures were shown to the witness for comparison, counsel for defendant inquired what the papers were which purported to be signed by defendant, and was answered that it was the record in the case. The counsel then objected in these words: "We object. It is not a paper in this case. You can't compare one paper with another unless the paper is a paper of this case. We hold that the witness can't testify as to the genuineness of this book by comparison with a paper that is not in this case." To this the prosecuting attorney answered, "The paper is in evidence, and I want Mr. McCord to look at these signatures, and by comparing them say whose they are." Objection for irrelevancy and incompetency. Objection overrul

ed, and exception saved. For a correct understanding of the exception it will be necessary to revert to the introduction of the sworn statement made by defendant before the coroner. The coroner, Mahon, was sworn, and testified to having held an inquest over the dead body; that the witnesses and jurors were all sworn, and the evidence written down by Giddinhagen, the sheriff. He was asked by counsel for defendant if he made a record of it, and he answered he did, and made a report of it to the county clerk; filed it with the clerk. The county clerk was sworn, and identified the papers as those filed with him by the coroner. Among these papers was the following: "Testimony of Emile David: "The first I saw of Mr. Henderson was in our yard, and he said, "I am cold. Let me go in the house and warm." I asked him if a dram of whisky would help him. He said, "Yes, he thought it would." I then gave him a dram of whisky. After I gave him the whisky, he opened the door, and came in the house. did not say white whisky, but said whisky in a white bottle. No one saw me give Henderson the dram of whisky. [Signed] Emile David.'" No objection whatever was made to the introduction of this deposition separately or to the whole inquest in a body. That it was a paper then in the case there can be no doubt. Section 2451, Rev. St. 1889, requires that "the evidence of such witnesses shall be taken down in writing, and subscribed by them." In addition to the positive testimony of the coroner, received without objection, to the effect that all the witnesses were duly sworn, and their testimony reduced to writing, and

returned by him to the county clerk, and that of the county clerk identifying the papers, the law presumes the coroner did his duty, and returned the deposition of each witness duly subscribed, as required by law. Certainly there is no presumption that the coroner signed defendant's name to his evidence without authority. This presumption in favor of the correctness of official action has often been indulged by this court. Owen v. Baker, 101 Mo. 407, 14 S. W. 175; State v. Mastin, 103 Mo. 508, 15 S. W. 529; Mitchner v. Holmes, 117 Mo. 185, 22 S. W. 1070; State v. Lord, 118 Mo. 1, 23 S. W. 764; State v. Howard, 118 Mo. 127, 24 S. W. 41. Moreover, defend ant must be held, in the absence of objection of any kind to his sworn statement when it was offered in the circuit court, to have waived any proof of the genuineness of his signature. The paper was offered as a whole. His signature was a part of the deposition. It was competent as an admission of his, and, if it was not his genuine signature, it was his duty then and there to object to it. It was competent for him to waive further proof of his signature, and, having elected to do so then, it is too late to raise that question now. The principle we are invoking is aptly illustrated by the case of a deposition offered on the trial without having previously accounted for the nonproduction of the witness by reason of his absence at the requisite distance from the place of trial. In such a case, if objection be not made to the deposition when offered, it will not meet with favor afterwards. Again, a party has a right to demand that a witness shall be sworn before testifying; but, suppose he knowingly permits a witness to testify, and raises no objection until he reaches this court, certainly he would not be permitted to raise that objection here on appeal for the first time. Had the defendant objected that his signature had not been sufficiently proven, the state would have been required to prove it, and doubtless could have called the coroner or sheriff or others who saw him sign the writing purporting to be his evidence. It stood as an admission, and there was no error in permitting the expert to compare it with the signature to the poison record in the then state of the evidence.

3. Again, it is assigned for error that defendant was summoned, sworn, and testified as a witness at the coroner's inquest, and it was error to admit his evidence taken at the inquest against him. There is nothing to indicate that defendant was subpoenaed, or that his testimony was not entirely voluntary. It is certain that he went to Chamois, and urged and insisted upon the coroner coming to hold the inquest. His testimony appears in a narrative form, without question or answer. The facts bring his case within the rule laid down in State v. Mullins, 101 Mo. 514, 14 S. W. 625, in which it was held that, in the absence of proof to the contrary, his statement will be presumed to have been voluntary. The case is lacking in all

the essentials which induced the ruling in State v. Young, 119 Mo. 495, 24 S. W. 1038.

4. The record does not support the fourteenth assignment of error. Counsel did not ask to recall Mr. Brandenberger. He did not advise the court of the question he claimed to have overlooked, and saved no exception to the refusal of the court's alleged refusal to permit a further cross-examination of the witness.

5. No reason was assigned for objecting to Crow's evidence in answer to the question, "What seemed to be the matter with Henderson?" It was derson?" It was perfectly competent for him to state the evidences of suffering and pain that he observed. He had already testified that the deceased was stooped over with cramps, and was holding to the bed rail as if in extreme agony; that he had brought him hot coffee; that he could not drink it, and was asked, "What seemed to be the trouble?" and he answered merely that “he seemed like he couldn't raise himself up far enough to swallow, looked like his nerves and everything was strained; he could not swallow."

6. The point is again made that the court refused to compel the state to call all the eyewitnesses of the homicide who were before the grand jury, and who were in court. For the reasons assigned in State v. Eaton, 75 Mo. 594, no error was committed by the court in declining to make the order requested. State v. Harlan (Mo. Sup.) 32 S. W. 997; Mayes v. State (Tex. Cr. App.) 24 S. W. 421. 7. There was no error in defining "deliberation." There is not a semblance of provocation in the case of any kind, and this instruction was approved in State v. Ellis, 74 Mo. 208, under such circumstances. It differs from the instruction in the Fairlamb Case (Mo. Sup.) 25 S. W. 896, in that it defines the condition of the mind when the crime was committed; that is to say, the act was "done in a cool state of the blood," whereas in the Fairlamb Case it was said "deliberation" meant "a cool state of the blood," having no reference whatever to the state of mind, but relating wholly to the physical condition of the blood.

8. The fifth instruction correctly defined "reasonable doubt," and was as favorable to defendant as the law would permit. It is entirely different from the instruction condemned in State v. Shaeffer, 89 Mo. 271, 1 S. W. 293.

9. Defendant complains of the seventh instruction given by the court of its own motion, as follows: "The previous good character of the defendant is a proper matter for the consideration of the jury, like any other fact proven in the case. If, however, you are satisfied beyond a reasonable doubt, from all the facts and circumstances proven in the case, that the defendant is guilty of the crime as charged in the indictment, then it is your duty to find the defendant guilty, even though you may be satisfied from the

evidence that the defendant sustained a good character and reputation previous to and up to the time of the commission of the crime charged. And if you find that the defendant has committed the crime as charged in the indictment, it is your duty to find him guilty, no matter whether any motive for the deed be apparent to you or not." In connection with this instruction, at the instance of defendant the court instructed the jury as follows: "The court instructs the jury that, when the evidence fails to show any motive to commit the crime charged on part of defendant, this is a circumstance in favor of his innocence; and in this case, if the jury finds, upon a careful examination of all the evidence, that it fails to show any motive on the part of defendant to commit the crime charged against him, then this is a circumstance which the jury ought to consider in connection with all the evidence in the case in making up their verdict. And in order to ascertain a motive the jury will take into consideration all the evidence in reference to their associations, relations, and deportment towards each other, together with all the other evidence in the case." There was no error in instructing the jury that if they believed from the evidence that defendant committed the murder it was their duty to find him guilty, whether the motive for the crime was apparent to them or not. The learned counsel has not, in oral argument or his printed brief, essayed to point out the error, and we can only infer that he is of opinion that no defendant can be convicted of a crime for the commission of which no motive is proven or made apparent to the jury. This, however, is clearly not the law. It seems to be a confusion of the necessary "intent" with "motive." The distinction is clear. It devolves upon the state to show the intent. If the jury believed, as they have said by their verdict they did, that defendant knowingly and willfully gave the deceased a drink of whisky with sufficient strychnine in it to kill him, they were bound to find that he intended the natural consequence of his act, to wit, death by poison; but can it be maintained that, though they found he accomplished the death of his victim by this intentional act, it was no crime, because, forsooth, they could not discern the motive therefor? The motives for crime are so numerous, so hidden, and often so utterly unreasonable, that it is impracticable to require that they shall always be made manifest. The fact of motive or the absence of motive is always an important inquiry in a case of this character, but the absence of an apparent motive is not conclusive of the innocence of the defendant. As stated by the learned circuit court, it is a circumstance in favor of the prisoner, but this is the extent of the weight to be given it. The court would not have been justified in directing a verdict for the defendant unless the jury could find a rational motive therefor. The counsel for the defendant did

not ask for such an instruction, and, if he had, it should have been refused. The two instructions are entirely consistent, and defendant had the full benefit of the want of an apparent motive on his part for the murder of the deceased. It did not follow that there was no motive because none appeared, or that a murder is impossible because there is no motive for it. State v. Coleman, 20 S. C. 441; People v. Ah Fung, 17 Cal. 377.

Again, it is urged against this instruction that it referred the jury to the indictment to find the issues they were to pass upon. As was said in this court in State v. Scott, 109 Mo. 226, 19 S. W. 89, "The jury should not be referred to the pleadings in civil or the indictment in criminal cases to ascertain the issue;" but mere reference to the indictment by the words "as charged in the indictment," or "as mentioned in the indictment," after the court has once clearly defined the issues, does not constitute error. In this case the court had fully defined the essential of the crime charged, which was simply that defendant had murdered Henderson, the deceased, by administering to him strychnine. The mere reference by the court and counsel for defendant, in these instructions, to "the crime charged in the indictment," could not have been prejudicial. Counsel for defendant uses the same phraseology in his own instruction in the same connection. Britton v. City of St. Louis, 120 Mo. 437, 25 S. W. 366; Edelmann v. Transfer Co., 3 Mo. App. 503; Corrister v. Railroad Co., 25 Mo. App. 619.

10. There was no error in the sixth instruction given for the state on the subject of circumstantial evidence. The jury were required to find the guilt of defendant beyond a reasonable doubt, and that the facts and circumstances tending to prove his guilt were not only consistent with any rational theory but that of the guilt of the defendant, but they were told the proven facts must be inconsistent with any rational hypothesis consistent with his innocence. It substantially conforms to the opinion of this court in State v. Moxley, 102 Mo. 374, 14 S. W. 969, and 15 S. W. 556; State v. Woolard, 111 Mo. 248, 20 S. W. 27.

11. There was no error in refusing the seventeenth instruction asked by defendant. The court had, in the ninth instruction, explained the status of defendant as a witness under our statutes, and the instruction asked was but a reiteration of the eighth instruction given for the state. Nor was any error committed in refusing the other 11 instructions prayed by defendant. In the 18 instructions given-9 on behalf of the state and 9 for defendant-the court fully and fairly declared the law. Indeed, it might well have dispensed with a number of those it gave without infringing any right of the defendant.

Upon a careful review of the evidence and the rulings of the court, we have been unable to find any substantial error in the trial,

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