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because of the failure of the plaintiff to appear at the time the cause was moved for trial. The assignments of error challenge the action of the court below in refusing the application of the plaintiff to postpone the cause, and denying a motion made by him subsequently to the dismissal of the complaint to open his default.
A writ of error will not reach rulings involving an exercise of discretion unless the discretion has been abused. The refusal to postpone a trial is within the rule. Means v. Bank, 146 U. S. 620, 13 Sup. Ct. 186, 36 L. Ed. 1107; Isaacs v. U. S., 159 U. S. 487, 16 Sup. Ct. 51, 40 L. Ed. 229; Goldsby v. U. S., 160 U. S. 70, 16 Sup. Ct. 216, 40 L. Ed. 343. So, also, is the refusal to reinstate a cause. Welch v. Mandeville, 7 Cranch, 152, 3 L. Ed. 299. Upon the facts in the record, so far from there having been an abuse of sound discretion by the court below, its rulings were amply justified.
The judgment is affirmed, with costs.
(113 Fed. 49.)
JACK et al. v. MUTUAL RESERVE FUND LIFE ASS'N.
1. EVIDENCE-DECLARATIONS OF PERSON DECEASED-RES GESTÆ.
The modern tendency is to extend, rather than to narrow, the rule as to the admission of declarations as part of the res gestæ, especially in view of the fact that the parties are now generally permitted to testify in their own behalf, and to consider the grounds which formerly excluded such declarations as affecting their weight only.
In an action on a life insurance policy by one Jack, as assignee, it was shown that the insured was a young man, recently married, and poor, who had been employed as a laborer by plaintiff for a number of years; that within a few months prior to his death his life had been insured in all for $21,000, all the policies having been assigned to plaintiff, who paid the premiums thereon; that he died from poison, and one Dr. Lipscomb had been convicted of his murder, for which offense also plaintiff had been tried and acquitted; that on the day preceding his death he was in town, and in and around plaintiff's store, as was also Dr. Lipscomb, who had conversations with plaintiff; that about 4 in the afternoon the doctor gave deceased a box, containing a single capsule, and told him to take it before going to bed, which he did; that within a few minutes thereafter he began to have convulsions, which followed each other at short intervals, and in the third of which he died; that between the second and third convulsions, with the consciousness of impending death, he made to his wife the following statement: "I am going to die. 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." Held, that such statement as a whole, and each part of it, was admissible in evidence on the part of defendant, under the circumstances shown and as against the objections made, as a part of the res gestæ.
8. SAME-GENERAL SCHEME TO DEFRAUD · PROOF OF OTHER GENERAL ACTS. Defendant in such action, in support of a defense that plaintiff had fraudulently procured the insurance and had murdered the insured, and for the purpose of connecting plaintiff with the acts of Lipscomb, was entitled to prove any fact which tended to show that they were acting in concert; and evidence that they had been engaged together in ob
taining fraudulent insurance on the lives of others was not inadmissible because it tended to show the commissi n of other crimes by plaintiff. 4. SAME-PROOF OF CONSPIRACY-DECLARATIONS OR ACTS OF CONSPIRATOR.
In support of an allegation of a conspiracy between plaintiff and another to defraud a life insurance company by procuring the issuance of the policy sued on on the life of the insured and then murdering him, statements, declarations, or acts of the co-conspirator are not inadmissible because made or occurring after the death of the insured, on the ground that the object of the conspiracy had been accomplished, since it was not in fact accomplished, under such allegations, until the collection of the insurance.
INSTRUCTIONS-SUFFICIENCY OF EXCEPTIONS.
A general exception to the charge of the court, covering many matters and issues, is insufficient to raise any question thereon which can be considered in an appellate court.
6. APPEAL-REVIEW-INSUFFICIENCY OF RECORD.
An appellate court cannot consider statements of fact in the assignments of error not shown by the bill of exceptions.
7. EVIDENCE-MEASURE OF PROOF ALLEGATION OF CRIME IN CIVIL ACTION.
In an action on a life insurance policy, a defense that the plaintiff aided and abetted or procured another to murder the insured need not be proved beyond a reasonable doubt; but it is sufficient if the jury, by all the evidence, are satisfied and convinced that the plea is true. 8. APPEAL-REVIEW-INSTRUCTIONS.
The failure of the trial court to give instructions requested cannot be assigned for error or considered by the appellate court unless it appears from the bill of exceptions that such instructions were requested and refused, and exceptions to such refusal were duly taken. LIFE INSURANCE-ACTION ON POLICY-PARTIES.
The widow of an insured has no interest in a policy made payable to his legal representatives, and which had also been assigned by him to another, which will enable her to maintain an action thereon, where it appears that the deceased owed debts at the time of his death, and that his estate has not been settled.
In Error to the Circuit Court of the United States for the Southern District of Mississippi.
W. E. Baskin and T. W. Brame (C. C. Miller, on the brief), for plaintiffs in error.
R. F. Cochran, for defendant in error.
Before PARDEE and SHELBY, Circuit Judges, and BOARMAN, District Judge.
SHELBY, Circuit Judge. This is an action on a life insurance policy. It was brought in the circuit court of Noxubee county, Miss., and duly removed to the court below. Plaintiff Guy Jack sued as the assignee of the policy, and Lillie A. Stewart, the other plaintiff, sued as the widow and sole surviving heir of Charles T. Stewart, the insured. The policy was for $10,000, and had been issued by the defendant in error on the life of Charles T. Stewart. It was made payable to the executors or administrators of the insured. It had been assigned to Guy Jack with the consent of the defendant. After the case had been removed to the United States court, the defendant filed a plea denying the allegations of the declarations, a plea of a general issue. Defendant, under the Mississippi practice, gave notice of special defenses that would be made. One
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. On yr. 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.,
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 almost 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 of 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 statement 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 kn w, 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."