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of these defenses was that Guy Jack, designing to cheat and defraud, induced Charles T. Stewart to apply to the Mutual Benefit Life Insurance Company for a policy of insurance on his life for the sum of $10,000; and that he also induced Charles T. Stewart to make an application to the defendant, the Mutual Reserve Fund Life Association, for another policy of insurance on his life for $10,000; and that, when both of these policies had been issued, he persuaded Charles T. Stewart to assign them to him; and that, after the assignments were made, Guy Jack employed Dr. W. H. Lipscomb to kill Charles T. Stewart, and that Lipscomb did murder Stewart. Notice of other defenses was given, which it is not necessary to mention. Plaintiffs offered in evidence the policy of insurance on which the suit was brought and the assignment thereof to Guy Jack, and proved that Charles T. Stewart was dead. It was admitted in open court by the plaintiffs that Charles T. Stewart was poisoned, and that Lipscomb had been convicted of his murder. The evidence offered by the defendant tended to show that Lipscomb forged three applications for insurance on the life of Mrs. Alice V. Hart, a widow in delicate health. These policies amounted to $12,500. One of them was made payable directly to Jack, and the others assigned to him. Lipscomb witnessed the assignment of both policies. These policies were issued without the knowledge of Mrs. Hart. When she learned of their existence, she had them canceled. Jack also held a large amount of insurance on the lives of other persons. In obtaining this insurance, Lipscomb was the medical examiner. Charles T. Stewart's life was insured in all for $21,000. The entire amount was held by Jack, as assignee, at the time of Stewart's death. Twenty thousand dollars of it had been in force for less than eight months. The policy sued on was assigned to Jack to secure the payment of a note for $10,000, payable one day after date, and of even date with the assignment. Stewart had signed his name to this note in the presence of three witnesses. Jack paid the premiums on these policies. He paid part in money and part in lumber. At this time Jack was insolvent. There were many unpaid judgments on record against him, and his property was mortgaged. There was some evidence tending to show that Jack and Lipscomb held themselves out as being unfriendly, when in fact they were friendly. While Jack was in jail, held to answer an indictment for the murder of Stewart, he wrote the following letter:
"Sept. 8, 1899. De Kalb, Miss., 3/3/97. "Mr. Chas. W. Camp, Mutual Reserve Fund Life Ass'n, New York, N. Y.Dear Sir: From a pleasant conversation had with you in your office last November I learned you first saw the light in our state, and that you are a Mason. Yr. assn. certainly feel kindly towards me for my letters to yr. pres. That no doubt caused you not to issue more insurance on life of W. B. Davis a short time before his death. What is needed is more light, that the innocent may be vindicated, and all the guilty punished,-an electric light thrown in the homes of people at Scooba, and skeletons brought from the closets. I have labored hard for years to obtain the facts that I now possess. I'm worth more to the state of Mississippi and insurance companies than a dozen lawyers or detectives. I don't want your attorney or mine to know anything about my knowledge of affairs. It might cause my
death, and then justice would be cheated of her reward. All I demand is that the insurance companies back me, and the state of Mississippi protect me. A word from insurance companies will let me out on bail. command I'll visit your city, and we will have conference, and arrange matters satisfactory. Let me hear from you at your earliest some way, and oblige "Yours very resp.,
Guy Jack." There was other evidence offered by the defendant, which will be referred to in discussing the various objections and exceptions. The plaintiffs offered evidence explanatory of these various circumstances. There was a verdict and judgment for the defendant, and the plaintiffs sued out a writ of error.
Objections to the Declarations of Charles T. Stewart. Charles T. Stewart, the insured, was a young man, and had been married about a year before his death. He was poor, and had never owned his own home; the total value of his property being about $210. He had been alınost continuously in the service of Guy Jack for about 15 years as a log hauler and helper in Jack's sawmills. At the time of Stewart's death, Jack held $21,000 of insurance on his life, including the policy involved in this suit. Charles T. Stewart spent the whole of the 21st of January, 1897, in the town of Scooba, Miss. About 4 o'clock in the afternoon, on that day, Dr. W. H. Lipscomb wrote for him a prescription, and carried it to the drug store of Dr. J. G: Mooney to be filled. Dr. Mooney was absent, and Lipscomb left the prescription at the drug store. Later both Lipscomb and Mooney returned to the drug store, and Lipscomb called Mooney's attention to the prescription. The prescription called for ten grains of bromide quinine, ten grains of antikamnia, and three-sixtieths of a grain of strychnine, to be made into three capsules. Dr. Mooney filled the prescription, making the three capsules as prescribed. Dr. Lipscomb suggested at the time that Mooney should use the crystal or powdered strychnine instead of the tablets. Mooney placed the three capsules in a small red paper box, and wrote thereon, as directed in the prescription, "Take one at night.” He gave the box to Lipscomb, who paid for the prescription. Lipscomb left the drug store with the box containing the three capsules, and soon met Charles T. Stewart and his father, J. M. Stewart, at the northeast corner of Guy Jack's store. Lipscomb took Charles T. Stewart aside, and said to him, "Bathe your feet and legs to your knees to-night, and take that capsule. He handed Stewart the red paper box. The box was opened, and it contained only one capsule. Charles T. Stewart then went home, getting there about dark.” He seemed cheerful and happy. He put up his horse, and fed him, and ate supper. He bathed his feet, and took the capsule, as directed by Lipscomb. In 10 or 15 minutes after taking the medicine he became very ill, and was seized with convulsions. Between the second and third convulsion he made declarations, which were proved by the evidence of his wife, and which were the subject of exceptions to be now considered. In the third convulsion he died. Only a few minutes intervened between the convulsions. He had taken only one capsule. The red box was examined immediately after his death, and it contained no other capsules. An autopsy of the body of Stewart showed that the cause of his death was poison by strychnine. One and one-half grains of strychnine were found in his stomach. Lipscomb and Jack were jointly indicted for the murder of Stewart, and, after a severance, Lipscomb was tried and convicted. On appeal to the supreme court of Mississippi the conviction was reversed. 75 Miss. 559, 23 South. 210, 230. He was again convicted, and on appeal the conviction was affirmed. 76 Miss. 225, 25 South. 158. Guy Jack was tried and acquitted. The circumstantial evidence in the record tends to connect Guy Jack with Lipscomb in causing the death of Stewart. The following excerpt from the evidence of Lillie A. Stewart, his widow, will show the declarations of Charles T. Stewart and the questions raised about them:
"Mr. Miller (attorney for the plaintiffs): We desire to submit this matter to the court out of the presence of the jury. (Jury sent out of court.) Q. Now, if Charley made any statement to you at that time, tell the court what he said. A. Well, he told me he was going to die; that he had been dead; and that the good Lord had sent him back to tell me that Dr. Lipscomb had killed him with a capsule he had given him that night; and that Guy Jack had his life insured, and that he had hired Dr. Lipscomb to kill him. (Plaintiff objects to the statement of the witness: (1) That he was going to die,' and separately to that part (2) that he had been dead,' and (3) 'that the good Lord had sent him back to tell me that Dr. Lipscomb had killed him with a capsule he had given him that night'; (4) 'that Guy Jack had his life insured, etc.'; and (5) plaintiff objects to the entire statement, as a whole. making each of said objections separately and severally, upon the ground that said statement, and the separate parts objected to, are each irrelevant, immaterial, and incompetent.) The Court: I am going to sustain the objection to this part: 'That he had been dead, and the good Lord had sent him back to tell me;' and will not permit it to go before the jury. The other, taken in connection with all of the facts in the case,
I will overrule the objection to, and the jury will consider it, subject to the instructions of the court. (Plaintiff excepted separately. The jury were returned into the court.) Mr. Miller: Our objection is not confined to the language that you strike out, but we object to the whole statement. The Court: Yes, you object to each part specifically, and then as a whole. Mr. Miller: We withdraw our objection to that part the statement that the good Lord had sent him back, and let her make the statement in full, but our objection will stand to all the balance, except that part 'that the good Lord had sent him back.' The Court: I don't think it is proper for that part to go before the jury, however. Mr. Bozeman (attorney for the defendant): We would prefer that just that part go to the jury that is competent.
Q. Mrs. Stewart, if Charley Stewart made any state. ment to you at the time referred to when your examinati n was interrupted, tell the court and jury what Charley Stewart said to you. A. Tell it like i did before? Q. Just tell the jury- The Court: Tell what he said, A. Well, he said: 'I am going to die, and I have been dead;' that 'Dr. Lipscomb killed me with a capsule he gave me to-night; and Guy Jack had my life insured, and hired Dr. Lipscomb to kill me.' Q. Now, how long did he live, Mrs. Stewart, after he said that? A. I don't knw, sir, exactly. It was not very long. Q. Well, about how long did he live, Mrs. Stewart? A. I couldn't tell exactly. Q. A few moments, or an hour or two, or what? A. Well, I don't know. It was not very long, because I know I left the bed, and went and sat down on some wood that was put in there to make a fire with, and Mr. Duran stepped over to the bed, and told me he was dead, and I don't think it had been very long. Q. I believe you stated that he made that statement to you after the second convulsion? A. Yes, sir; he died in the third convulsion."
Before making this statement, Stewart had called on a negro man present to pray for him, and it clearly appeared otherwise that he was conscious of impending death. This being a civil case, however, these declarations are not offered as dying declarations. Dying declarations, as such, are admitted only in the case of a trial for the homicide of the declarant, and then on the ground that they were made in extremis. I Greenl. Ev. $ 156. And Wharton says: "We may conclude, therefore, that such declarations are limited to criminal prosecutions when the subject-matter of the investigation is the declarant's death.” Whart. Cr. Ev. (9th Ed.) § 288. But declarations made in extremis are often legal evidence in civil cases, for where they constitute part of the res gestæ, or come within the exceptions of declarations against interest, or the like, they are admissible, as in other cases, irrespective of the fact that the declarant was under apprehension of death. I Greenl. Ev. $ 156. It is, of course, a general rule that the declarations of no man are adniitted in evidence without the sanction of an oath and opportunity for cross-examination. But exceptions to the hearsay rule are as well established as the rule itself. There is much difficulty and much conflicting authority in the application of the exceptions. The declarations in this case are accompanied by the circumstances that usually accompany such declarations when admitted. The declarant is dead, and cannot be produced as a witness. The declarations were made without opportunity or cause for wariness or falsehood, and, besides, they were made under the sense of impending death; and, while not admissible, as we have said, as dying declarations, the fact that the declarant knew he was dying is looked on in the law in graver cases than this as dispensing with the necessity of an oath. The declarations of the individual made at the moment of a particular occurrence, where the circumstances are such that we may assume that his mind is controlled by the event, are received in evidence as a part of the res gestæ because they are supposed to be involuntarily forced out of him by the particular event, and thus have an element of truthfulness which they might not otherwise have. They must be undesigned declarations incident to a particular litigated act, and illustrative of such act. If one, immediately upon being shot, cries out, "I am shot! I am killed !" and names his assailant, these declarations would, without question, be admitted as a part of the res gestæ. In Com. v. Hackett, 2 Allen, 136, the victim was heard to cry out: “I am stabbed!” The witness at once went to him, and within 20 seconds after that heard him say: "I am stabbed. I am gone. Dan. Hackett has stabbed me.” This evidence was held competent as a part of the res gestæ. While it is said that the declarations must be contemporaneous with the main fact, no rule can be formulated by which to determine how near, in point of time, they must be. No two cases are exactly alike, and the determination of this question is always inseparable from the circumstances of the case at bar. The transaction in
question may be such that the res gestæ would extend over a day, or a week, or "a month.” Rawson v. Haigh, 2 Bing. 99; Insurance Co. v. Mosley, 8 Wall. 397, 407, 19 L. Ed. 437; People v. Vernon, 95 Am. Dec. 58, note, and cases there cited. In this case the fatal capsule was handed to the victim in the afternoon, but not taken till bedtime. If Lipscomb, instead of giving him the capsule and prescription on the streets in the afternoon, had called at his house, and given it to him, and left a minute before it was swallowed, the declarations would have been brought nearer in point of time to the moinent that Lipscomb had handed Stewart the medicine; but we cannot see that the rule as to the admissibility of Stewart's declarations would have been different. If one threw a bomb, which immediately exploded, and killed another, the declaration of the dying man as to who threw it would be a part of the res gestæ. If the assailant, instead of throwing the bomb, had placed it concealed, and fixed to explode in an hour or in 10 hours, when it exploded, the involuntary exclamation of the fatally wounded man, naming the person who had placed the bomb near him, would be, we think, a part of the res gestæ. So we do not think that these objections gain any weight from the length of time which elapsed between Lipscomb's act of haiding the capsule to Stewart and his declarations. The declarations were made while Stewart was suffering from the effect of Lipscomb's act. The objection to the whole declaration, we think, was properly overruled.
That part of Stewart's declaration, “That he had been dead, and the good Lord had sent him back to tell me,” was excluded by the court, and no question as to its admissibility is before us. Separate objections to other portions of the declarations were overruled, and exceptions reserved. The statement “that he was going to die,” which is separately objected to, made 10 or 15 minutes before he died, was admissible as showing his physical condition. Such declarations are always received. Besides, it could not injure the plaintiffs. The statement that Dr. Lipscomb had killed him with the capsule he had given him that night” is, we think, clearly admissible.
The next objection, as it appears in both the printed and original transcripts, is addressed to the statement "that Guy Jack had his life insured, etc.” That Jack had insurance on Stewart's life is not a disputed question. This suit is to collect such insurance, and Jack admitted as a witness that he had $21,000 of insurance on Stewart's life when he died. Again, the part of the declaration reciting "that Guy Jack had his life insured” is unobjectionable. The court was justified in overruling the objection, even construing it to embrace the words “and that he hired Lipscomb to kill him,” because the objection included evidence to which no objection could be well taken; for, if an objection covers any admissible evidence, it is properly overruled. U. S. v. McMasters, 4 Wall. 680, 18 L. Ed. 311. The only material part of the sentence to which it is claimed that this objection is addressed is "that he [Jack] had hired Dr. Lipscomb to kill him.” If we are to treat this part of this sentence as covered by the objection, and as separately objected to, as it has been treated by counsel, though it is not set out in the objection, it presents a question difficult of solution. The words we have just quoted are not embraced in the objection, unless they are included by the addition, "etc.," to the objection. The objection is made that the declara