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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.
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 seen a bottle of strychnine in defendant's and based upon the evidence and all the trunk. Mr. A. Brandenberger testified: That facts and circumstances proven in the case, in November prior to the death of Henderson and not a mere possibility of innocence. If. he had sold a quantity of strychnine to some however, the whole evidence in the case one representing himself to be E. Davis. leaves your minds in such condition that you That he kept a poison record, upon which he are neither morally certain of the defendant's entered the sale of all poison. His poison guilt nor morally certain of his innocence, record showed the following: "November 1, then a reasonable doubt exists, and in such at 11 a. m., strychnine, one drachm; to kill case you should give the defendant the bene- rats. Going to use it myself. E. Davis. fit of such doubt, and acquit him." "Delib- Residence, Osage county. '93." That he eration” means “done in a cool state of the could not identify defendant. That the sigblood, and not done in a sudden passion, en- nature in his poison register was made by the gendered by a lawful or just cause of provo- person who bought the poison. At the corocation.” To the giving of which instructions ner's inquest the defendant was sworn and defendant duly excepted.
testified, and his evidence was written down The defendant was indicted and convicted by Mr. Giddinhagen, the sheriff of the county. in the circuit court of Osage county, at the After it was written out, it was read over December term, 1894, of the murder of Frank by Giddinhagen to the coroner, who could Henderson by administering to him strych- neither read nor write. The coroner, as renine in a drink of whisky on the morning of quired by law, returned all the evidence takJanuary 8, 1894. From that conviction he en down, together with the verdict of the prosecuted this appeal. The testimony dis- | jury, to the county clerk, who identified the closes the facts that the deceased and his par- papers at the trial. After their identification ents, during January, 1894, lived in Osage by the county clerk, they were offered in evicounty, about 10 miles from Chamois; that the dence, without objection on the part of dedefendant, with his parents, resided in Osage
fendant. The testimony of each witness as county, between the home of the deceased and taken at the inquest purported to be signed Chamois; that on the morning of the 8th by himself. The name of defendant was apof January the deceased started afoot to go pended to his evidence thus returned. No to Chamois; that he arrived at the home of objection was made because the signatures the defendant about daylight, where he stop- had not been first proven, or for any other ped. Upon his arrival he remarked that he reason whatever. J. Rhey McCord, Esq., was was cold, whereupon defendant invited him sworn as an expert, and testified that in his to take a drink of whisky, which he did, (pinion the signature to the defendant's eviand almost immediately thereafter was taken dence before the coroner was written by the with violent cramps, and died within an hour same person who signed the poison record and a half. After drinking the whisky, the kept by the pharmacist, Mr. Brandenberger. deceased had every symptom of being poison- The testimony on the part of the defendant ed. The coroner was sent for, came, attend- tended to establish a good reputation for the ed by two physicians, and made a post mortem defendant, and a bad reputation for the examination, inspected his internal organs, state's witness Emmett Crow. It is also removed the stomach, placed it in a sealed shown by the defendant that he was in Jefjar, and delivered it to Prof. Chas. S. Sanger, ferson City on the 1st of November, the same a professor of chemistry in St. Louis. Dr. date on which the strychnine was sold by Mr. Mahon, who assisted the coroner in the post Brandenberger. The David family testify mortem examination, testified that the de- that the deceased stated that he had taken a ceased died from the effects of poison strych- drink of whisky given by defendant out of a nine taken or administered to him. The tes- white, druggy bottle; and Mrs. O'Doud testimony of Dr. Townley was in substance the tified that just before the death of Henderson, same as that of Dr. Mahon. Prof. Sanger and while he was sick, she took a drink of testified that he made a chemical examina- whisky out of a white bottle, which was tion of the stomach, and found that it con- said to be of the same whisky given to detained five-sixths of a grain of strychnine, ceased. It is also shown that the deceased and that this amount was sufficient in quan- was in love with Lily David. She testified tity to destroy human life. It is further that, while her father objected to the attenshown that when the deceased was taken tions of the deceased, the defendant did not. with the cramps he was sitting by the stove She also testified that she had frequently in the kitchen, talking to Miss Lily David, a been in the trunk of the defendant, had seen sister of defendant, with whom he was in tools, bottles of musk and perfumery; but love; that he was removed upstairs, and in she does not say that she did not see strychthe presence of the defendant stated that the nine, as testified to by Crow. The defenddefendant had given him a drink of white ant testified in his own behalf. Denied that whisky, which tasted bitter, and left a taste he purchased the poison as shown by Bransomething like quinine in his mouth, which denberger's register. Does not remember the he could not get rid of. One of the state's dates of his visits to Jefferson City. Admits witnesses, Emmett Crow, testified that some having given the deceased a drink of whisky, time prior to the death of Henderson he had but says there was nothing in the bottle but whisky. Says that he and his father and Mrs. of the court for eight years, deputy collector O'Doud took a drink out of the same bottle aft- of taxes, and prosecuting attorney. The witer deceased became sick. Denies that he had ness himself felt that he had a peculiar facany strychnine in his trunk, and testifies that ulty in distinguishing handwriting. Nothing he and the deceased were good friends. It whatver appeared to the contrary. The decialso appears from the testimony that while sion of the trial court will not be disturbed the deceased was sick he was given a drink under such circumstances. of red whisky, which was secured, not out of The most serious and important question in a white bottle, but out of a jug downstairs, this record, however, does arise in connection and given in a tin cup. Other facts may ap- with Mr. McCord's testimony. He was called pear in the course of the opinion.
upon to compare the signature to the evidence
of the defendant taken at the coroner's inI. W. Boulware, for appellant. R. F. Walk
quest with the signature to the poison record er, Atty. Gen., and Morton Jourdan, for the kept by the druggist Mr. Brandenberger. State.
When the two signatures were shown to the
witness for comparison, counsel for defendant GANTT, P. J. (after stating the facts). 1.
inquired what the papers were which purThe court asked the entire panel, on their ported to be signed by defendant, and was anvoir dire examination, if they would find a swered that it was the record in the case. verdict of murder in the first degree upon cir- The counsel then objected in these words: “We cumstantial evidence if it was sufficient, pre- object. It is not a paper in this case. You mising that he understood the state would per- can't compare one paper with another unless haps not be able to prove by direct testimony the paper is a paper of this case. We hold who did the poisoning or mixing the poison that the witness can't testify as to the genuadministered to Frank Henderson. It is now ineness of this book by comparison with a for the first time objected that this question paper that is not in this case.” To this the was improper, in that it assumed that Hen- prosecuting attorney answered, “The paper is derson was poisoned. The exception comes in evidence, and I want Mr. McCord to look too late; but, if it had been timely, in view at these signatures, and by comparing them of the overwhelming testimony that Hender- say whose they are." Objection for irreleson was poisoned, the judgment would not be vancy and incompetency. Objection overrulreversed for this reference alone.
ed, and exception saved. For a correct unSeveral of the jurors also stated they had derstanding of the exception it will be necesconscientious scruples against the infliction of sary to revert to the introduction of the sworn the death penalty; that they could not and statement made by defendant before the corowould not render a verdict of guilty knowing ner. The coroner, Mahon, was sworn, and the penalty would be death. Much stress is testified to having held an inquest over the laid upon the form of the question and the dead body; that the witnesses and jurors were answer that they did not say their opinions all sworn, and the evidence written down by would preclude such a verdict. The whole Giddinhagen, the sheriff. He was asked by examination disclosed very clearly that such counsel for defendant if he made a record of was their conviction, and no error was com- it, and he answered he did, and made a remitted in excluding these jurors. Equally un- port of it to the county clerk; filed it with the tenable is the point now urged to the exclu- clerk. The county clerk was sworn, and idension of other jurors because their opinions | tified the papers as those filed with him by were formed merely from rumors and news- the coroner. Among these papers was the folpaper reports. The record does not sustain lowing: "Testimony of Emile David: "The
this assignment. The court seems to have first i saw of Mr. Henderson was in our
been very patient and careful to obtain an im- yard, and he said, “I am cold. Let me go in partial jury.
the house and warm." I asked him if a dram 2. The objection to the ruling permitting J. of whisky would help him. He said, “Yes, he Rhey McCord to testify because he had been thought it would.”
thought it would." I then gave him a dram in the court room during the trial is without of whisky. After I gave him the whisky, he merit. The record does not show any order | opened the door, and came in the house. I excluding the witness, and, if it did, the dis- did not say white whisky, but said whisky in a cretion of the trial court will not be interfered white bottle. No one saw me give Henderson with because it made this exception. Mr. Mc- the dram of whisky. [Signed] Emile David.'” Cord was called simply to compare two signa- No objection whatever was made to the introtures, and if he had heard all the evidence it duction of this deposition separately or to the would not have aided him in forming his whole inquest in a body. That it was a paper opinion as an expert on handwriting. State then in the case there can be no doubt. Secv. Whitworth (Mo. Sup.) 29 S. W. 595. Nei- tion 2451, Rev. St. 1889, requires that "the ther do we consider he was incompetent to tes- evidence of such witnesses shall be taken tify as an expert. His qualification was a down in writing, and subscribed by them.” preliminary question for the determination of In addition to the positive testimony of the the circuit court. It appeared that the larger coroner, received without objection, to the efportion of his life had been devoted to cler- fect that all the witnesses were duly sworn, ical pursuits, such as cashier of a bank, clerk and their testimony reduced to writing, and returned by him to the county clerk, and that the essentials which induced the ruling in of the county clerk identifying the papers, the State v. Young, 119 Mo. 495, 24 S. W. 1038. law presumes the coroner did his duty, and 4. The record does not support the fourreturned the deposition of each witness duly teenth assignment of error. Counsel did not subscribed, as required by law. Certainly
by law. Certainly ask to recall Mr. Brandenberger. He did not there is no presumption that the coroner sign- advise the court of the question he claimed ed defendant's name to his evidence without to have overlooked, and saved no exception authority. This presumption in favor of the to the refusal of the court's alleged refusal correctness of official action has often been to permit a further cross-examination of the indulged by this court. Owen v. Baker, 101 witness. Mo. 407, 14 S. W. 175; State v. Mastin, 103 5. No reason was assigned for objecting Mo. 508, 15 S. W. 529; Mitchner v. Holmes, to Crow's evidence in answer to the question, 117 Mo. 185, 22 S. W. 1070; State v. Lord, “What seemed to be the matter with Hen118 Mo. 1, 23 S. W. 764; State v. Howard, derson ?" It was perfectly competent for 118 Mo. 127, 24 S. W. 41. Moreover, defend- him to state the evidences of suffering and ant must be held, in the absence of objection pain that he observed. He had already testiof any kind to his sworn statement when it fied that the deceased was stooped over with was offered in the circuit court, to have waiv- cramps, and was holding to the bed rail as ed any proof of the genuineness of his signa- if in extreme agony; that he had brought ture. The paper was offered as a whole. him hot coffee; that he could not drink it, His signature was a part of the deposition. It and was asked, “What seemed to be the was competent as an admission of his, and, if trouble?” and he answered merely that "he it was not his genuine signature, it was his seemed like he couldn't raise himself up far duty then and there to object to it. It was enough to swallow, looked like his nerves competent for him to waive further proof of and everything was strained; he could not his signature, and, having elected to do so swallow." then, it is too late to raise that question now. 6. The point is again made that the court The principle we are invoking is aptly illus- refused to compel the state to call all the trated by the case of a deposition offered on eyewitnesses of the homicide who were bethe trial without having previously accounted fore the grand jury, and who were in court. for the nonproduction of the witness by rea- For the reasons assigned in State v. Eaton, son of his absence at the requisite distance 75 Mo. 594, no error was committed by the from the place of trial. In such a case, if ob- court in declining to make the order requestjection be not made to the deposition when ed. State v. Harlan (Mo. Sup.) 32 S. W. 997; offered, it will not meet with favor after- Mayes v. State (Tex. Cr. App.) 24 S. W. 421. wards. Again, a party has a right to demand 7. There was no error in defining "deliberathat a witness shall be sworn before testify- tion.” There is not a semblance of provocaing; but, suppose he knowingly permits a wit- tion in the case of any kind, and this inness to testify, and raises no objection until struction was approved in State v. Ellis, 74 he reaches this court, certainly he would not Mo. 208, under such circumstances. It difbe permitted to raise that objection here on fers from the instruction in the Fairlamb appeal for the first time. Had the defend- Case (Mo. Sup.) 25 S. W. 896, in that it deant objected that his signature had not been fines the condition of the mind when the sufficiently proven, the state would have been crime was committed; that is to say, the act required to prove it, and doubtless could have was “done in a cool state of the blood,” called the coroner or sheriff or others who whereas in the Fairlamb Case it was said saw him sign the writing purporting to be "deliberation" meant "a cool state of the his evidence. It stood as an admission, and blood," having no reference whatever to the there was no error in permitting the expert to state of mind, but relating wholly to the compare it with the signature to the poison | physical condition of the blood. record in the then state of the evidence.
8. The fifth instruction correctly defined 3. Again, it is assigned for error that de- "reasonable doubt," and was as favorable to fendant was summoned, sworn, and testi- | defendant as the law would permit. It is fied as a witness at the coroner's inquest, entirely different from the instruction conand it was error to admit his evidence taken demned in State v. Shaeffer, 89 Mo. 271, 1 at the inquest against him. There is nothing S. W. 293. to indicate that defendant was subpoenaed, 9. Defendant complains of the seventh inor that his testimony was not entirely vol- struction given by the court of its own mountary. It is certain that he went to Cham- tion, as follows: "The previous good characois, and urged and insisted upon the cor- ter of the defendant is a proper matter for oner coming to hold the inquest. His testi- the consideration of the jury, like any other mony appears in a narrative form, without fact proven in tbe case. If, however, you question or answer. The facts bring his case are satisfied beyond a reasonable doubt, from within the rule laid down in State v. Mullins, all the facts and circumstances proven in the 101 Mo. 514, 14 S. W. 625, in which it was case, that the defendant is guilty of the held that, in the absence of proof to the con- crime as charged in the indictment, then it trary, his statement will be presumed to have is your duty to find the defendant guilty, been voluntary. The case is lacking in all even though you may be satisfied from the
evidence that the defendant sustained a good , not ask for such an instruction, and, if he