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that the policy in suit was not forbidden , sured commits suicide, is a waiver or nulliby the statute? Can an insurance com- fication of the statute which declares such pany and the insured lawfully stipulate a stipulation in a policy 'shall be void.' that, in the event of suicide, not contem- The statute is mandatory and obligatory plated by the insured when applying for a alike on the insurance company and the aspolicy, the company shall not be bound to sured. Its very object was to prohibit and pay the principal sum insured, but only a annul such stipulations in policies, and it given part thereof? Will the statute, in a cannot be waived or abrogated by any form case of suicide, allow the company, when of contract or by any device whatever. The sued on its policy, to make a defense that legislative will, when expressed in the perwill exempt it, simply because of such sui- emptory terms of this statute, is paramount cide, from liability for the principal sum? and absolute, and cannot be varied or

We cannot agree with the learned courts waived by the private conventions of the below in their interpretation of the statute. parties." Upon writ of error to the circuit The contract between the parties, evidenced court of appeals the judgment was affirmed, by the policy, is, we think, an evasion of the that court saying: “The company refused to statute, and tends to defeat the objects for pay the full amount named in the policy, which it was enacted. In clear, emphatic claiming that, by the express provisions of words the statute declares that in all suits the policy, self-destruction by the insured, on policies of insurance on life it shall be whether sane or insane, rendered the conno defense that the insured committed sui-tract for the payment of $5,000 void, and cide, unless it be shown that he contem- the company was only bound to pay the plated suicide when applying for the policy. amount which had been paid in assessments Whatever tends to diminish the plaintiff's by the insured. This action was brought in cause of action or to defeat recovery in the circuit court for the western district of whole or in part amounts in law to a de- Missouri, to recover the full sum of $5,000. fense. When the company denied its lia- The case was tried to the court, a jury bebility for the whole of the principal sum, it ing waived. The parties stipulated that the certainly made a defense as to all of that company was liable for the full amount sum except one tenth. If, notwithstanding claimed by the plaintiffs, unless excused by the statute, an insurance company may, by the clause in the policy providing that the contract, bind itself, in case of the suicide same should be void in case of suicide; of the insured, to pay only one tenth of the

Judgment in favor of plaintiffs principal sum, may it not lawfully contract having been entered for the full amount of for exemption as to the whole sum or only the policy, the case was brought to this a nominal part thereof, and, if sued, defeat court upon writ of error.

In our any action in which a recovery is sought judgment, the court below ruled correctly for the entire amount insured? In this way in holding that the policy sued on was a the statute could be annulled or made use contract made in Missouri, and, as such, less for any practical purpose. Looking at that the provisions of $ 5982 [the same as the object of the statute, and giving effect the statute now in question] are applicable to its words according to their ordinary, thereto; and therefore the judgment is afnatural meaning, the legislative intent was firmed, at costs of plaintiff in error.” 1 C. to cut up by the roots any defense, as to C. A. 561, 562, 569, 4 U. S. App. 353-355, the whole and every part of the sum in- 359, 50 Fed. 511, 512, 515. sured, which was grounded upon the fact of In Knights Templars' & M. Life Indemsuicide. The manifest purpose of the stat- nity Co. v. Jarman, 187 U. S. 197, 47 L. ed. ute was to make all inquiry as to suicide 139, 23 Sup. Ct. Rep. 108, this court had ocwholly immaterial, except where the in-casion to consider the scope and effect of sured contemplated suicide at the time he the statute here in question. That was an applied for his policy. Any contract incon- action upon a policy of life insurance for sistent with the statute must be held void. $5,000. A recovery for the whole sum was

In Berry v. Knights Templars' & M. Life sought, but the company defended the acIndemnity Co. 46 Fed. 441, which was an ac- tion upon the ground that the provision in tion upon a policy of life insurance, it ap- the statute that it should be no defense that pears that the policy, among other things, the insured committed suicide related only provided that, in the case of the self-de-to cases where he took his own life volunstruction of the insured, whether voluntary tarily, while sane, and in full possession of or involuntary, sane or insane, the policy his mental faculties; that the provision in should be void. Judgment was given for the policy that “‘in case of the self-destructhe plaintiff. The circuit court said: "It tion of the holder of this policy, whether is contended that the provision in the policy, voluntary or involuntary, sane or insane, declaring that it shall be void if the as

this policy shall become null and

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void,' applies, and exonerates the company | If one holds a general life policy and from all liability beyond that provided in an accident policy, and is killed by the policy, 'that, in the case of the suicide

the suicide lightning or commits suicide, so that he of the holder of this policy, then this com may be said to have died by accidental pany will pay to his widow and heirs or means, both the companies should pay, and devisees such an amount of his policy as the stipulation against liability in the event the member shall have paid to this com- of suicide in the policies should be no more pany on the policy in assessments on the a defense against the suit upon the accident same, without interest.'” This view of the policy, providing against death from accistatute was not accepted in the circuit dental cause, than against the policy which court, and there was judgment against the goes further and covers death from other company for the whole sum insured. That causes 2.8 well. No such exception or exjudgment was affirmed here upon certiorari emption is found in the plain and compreto the circuit court of appeals.

hensive language of $ 5855. . . . No rule of A leading case on the general subject is construction, short of one applied for disLogan v. Fidelity & C. Co. 146 Mo. 114, tortion and destruction, can relieve acci119, 122, 123, 47 S. W. 948, which was a dent insurance companies, issuing policies suit upon a policy which, according to the of insurance on life in this state, from the answer in the case, contained stipulations operation and influences of g 5855, which, in and covenants to the effect that, in the plain and unambiguous terms, declares that event of fatal injuries to the assured, wan- in all suits upon policies of insurance on tonly inflicted upon himself, or inflicted life thereafter issued, it shall be no defense upon himself while insane, the company's that the assured committed suicide, unless liability under its policy should be a sum it shall have been shown, to the satisfacequal to the premiums paid, and that sum tion of the court or judge trying the cause, the policy provided should be in full liquida- that the insured contemplated suicide at the tion of all claims under it. The question time of making his application for the polibefore the court was whether or not the cies; all stipulations in the policy to the statute here in question applied to such a contrary being void.” policy as the one there in suit. The trial In Keller v. Travelers' Ins. Co. decided by court instructed the jury to return a ver

the St. Louis court of appeals, 58 Mo. App. dict for the full amount of the policy, with 557, 560, 561, we have a decision very much interest. The court said: “The error into in point. That was an action on an insurwhich respondent has fallen is in assuming ance policy for $2,500. The company dethat § 5855 [the statute now in question] fended upon the ground that, by the terms was intended to affect a particular line, of the policy, if the insured died of suicide, class, or department of insurance, as the whether the act be voluntary or involunsame has been classified for legislation. The tary, it should be liable for the then full real object of the section, as the clear terms net value of said policy per the American of its language express, is to affect all poli- Experience Table of Mortality and 41/2 per cies of insurance on life from whatever cent interest, and no more, and that the class, department, or line of insurance the same should be paid in manner and form as policy may be issued, or by whatever name provided in the policy for the payment or designation the company may be known. thereof in the event of death. The defense It is policies of a given kind, and not com was that the insured committed suicide, panies of a class, that are to be affected by and that the full net value of the policy, the provisions of § 5855. The section was according to the contract, was only $814.50, enacted clearly to protect all policy holders and no more. The defense was overruled of insurance on life against the defense that and judgment given for the principal sum. the insured committed suicide, all provisions That judgment was affirmed in the court of in the policies to the contrary notwith- appeals, the court saying: “The plain purstanding, unless, as provided in the section, pose of the statute, supra, was to preit can be shown that the insured con- vent the insertion in policies of life insurtemplated suicide at the time he made ap- ance of exceptions to liability on the ground plication for the policy. . When a of the suicide of the insured, unless it policy covers loss of life from external, vio could be proven that the insured contemlent, and accidental means alone, why is it plated suicide at the time he made the apnot insurance on life? Such a provision in- plication for the policy. This was, in efcorporated in a general life insurance policy fect, a legislative declaration of the public admittedly would be insurance on life: then policy of this state. That it was intended why less insurance on life because not cou- to limit the power to contract for a lesser pled with provisions covering loss of life liability in cases of death by suicide, not from usual or natural causes as well? within the limitation expressed in the stat

ute, is also apparent from its terms, to wit: / volved in the contention that the defendant ‘And any stipulation to the contrary shall | in a criminal case was compelled to be a be void.' ... The fact that the premi

The fact that the premi- witness against himself, _contrary to the um warranted, and the policy guaranteed, 5th Amendment to the Federal Constitufull insurance in case of the death of tion, since this amendment does not operate the insured for any cause not specified but was intended to operate solely upon the

as a restriction of the powers of the state, in the clause set up in the defendant's an- Federal government. swer, demonstrates that said clause was

Error to state court-Federal question. designed to modify the liability of the in

4. The admission of evidence in a crimsurance company if the insured commit- inal case which the highest state court deted suicide. It necessarily follows, if this cides did not violate the rights of the acstipulation as to a decreased liability in the cused under the state Constitution and laws event of death by suicide is enforced, that cannot involve a question of due process of it is some defense to the otherwise full law of sufficient merit to sustain a writ of liability agreed upon in the policy. As the

error from the Supreme Court of the United

States. statute in question declares that suicide, not committed as therein set forth, is 'no de

Error to state court-Federal question. sense,' we cannot hold that the present state court on the ground that by reason

5. Demurring to an indictment in a stipulation can be enforced without violat- of the inconsistency, multiplicity, and reing the plain terms of a mandatory statute pugnancy of the different counts in such inwhich the parties have no power to alter or dictment the defendant is being proceeded abrogate.”

against in violation of the state and Federal Without further discussion, we adjudge guaranty of due process of law, and in viothat, under the statute in question, any lation of his constitutional right to be spething to the contrary in the policy issued cifically informed of the nature and cause by the insurance company notwithstanding, raise a Federal question of sufficient merit

of the accusation against him, does not where liability upon a life policy is denied to sustain a writ

of error from the Supreme simply because of the suicide of the insured, Court of the United States. the beneficiary of the policy can recover the Error to state court-citizenship of parties. whole of the principal sum, unless it be shown that the insured, at the time of his material as affecting the jurisdiction of the

6. The citizenship of the parties is imapplication for the policy, contemplated sui- Federal Supreme Court, under U. S. Rev. cide. The judgment must, therefore, be re- Stat. $ 709, U. S. Comp. Stat. 1901, p. 575, versed and the case remanded for further of a writ of error to a state court.† proceedings in conformity with this opinion Error to state court-Federal question. and consistent with law.

7. A decision of the highest state court It is so ordered.

that the defendant in a criminal case has been tried in accordance with the local procedure, although the names of all the wit

nesses were not indorsed on the indictment, FREDERICK SEYMOUR BARRINGTON, cannot be reviewed in the Supreme Court of Plff. in Err.,

the United States on the theory that a meriv.

torious Federal question was involved in STATE OF MISSOURI.

the claim that the accused was a subject of

Great Britain, and, by virtue of treaties, the Error to state court-Federal question.

law of nations, the laws and Constitution of 1. The refusal of a state court to grant, the United States, and the laws of the for local prejudice, the change of venue state, was entitled to know who were the asked for in a criminal case, cannot involve witnesses against him. a Federal question of sufficient merit to sustain a writ of error from the Federal Su

[No. 493.] preme Court, where the highest state court, after reviewing the testimony, decided that Submitted April 8, 1907.

Decided April such refusal was not an abuse of the dis

22, 1907. cretion vested in the trial court.

N ERROR to the Supreme Court of the when raised in time.

2. The suggestion of a Federal ques which affirmed a conviction of murder in the tion, first made in a petition for rehearing, Circuit Court of St. Louis County, in that filed in the highest state court, is too late state. Dismissed for want of jurisdiction. to sustain a writ of error from the Supreme Court of the United States. *

See same case below, 198 Mo. 23, 95 S.

W. 235. Error to state court-Federal question. 3. No Federal question which will sus

The facts are stated in the opinion. tain a writ of error from the Supreme Court

Mr. William G. Johnson for plaintiff in of the United States to a state court is in

Error to state court—Federal question, I State of Missouri to review a judgment

*Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, $ 1080. Ed. Note. For cases in point, see vol. 13, Cent. Dig. Courts, $ 1049.

error.

Messrs. Herbert S. Hadley and John Ken- it to be a well-settled rule of law in Misnish for defendant in error.

souri that the granting of a change of

venue in a criminal case rested largely in Mr. Chief Justice Fuller delivered the the discretion of the trial court, and that opinion of the court:

“where the trial court has heard the eviPlaintiff in error was found guilty of dence in favor of and against the applicamurder in the first degree in the circuit tion, and a conclusion reached adversely to court of St. Louis county, Missouri, and granting the change, such ruling will not be after motions for new trial and in arrest of disturbed by this court, and should not be judgment were made and overruled, judg- unless there are circumstances of such a ment was rendered on the verdict and sen- nature as indicates an abuse of the discretence passed accordingly. The case was car- tion lodged in such court." And the suried to the supreme court of the state and preme court, after a full review of all the the judgment was affirmed by division No. testimony, decided that the trial court had 2 of that court, having appellate jurisdic- acted properly in overruling the application tion of criminal cases. No Federal ques- for a change of venue. In our judgment no tion was referred to in the opinion of the Federal question was involved. Were this court. A motion for rehearing was filed, otherwise it would follow that we could wherein Federal questions were sought to decide in any case that the trial court had be raised. The court denied the motion abused its discretion under the laws of the without opinion.

state of Missouri, although the supreme Plaintiff in error then moved for the court of that state had held to the contrary. transfer of the cause to the court in banc, 2. It is also contended that plaintiff setting forth certain Federal questions, and in error "set up and claimed that, under the cause was transferred. The court in the Federal Constitution, as well as under banc adopted the opinion of division No. 2 the Constitution of Missouri, he could not as its opinion, and the judgment was again be compelled to give testimony against himaffirmed. 198 Mo. 23, 95 S. W. 235. A mo- self, and that this exemption and protection for rehearing, assuming to raise Fedtion were denied to him by the court in pereral questions, was filed, and denied without mitting to be given in evidence against him opinion. This writ of error was thereupon alleged extrajudicial admissions extorted brought and comes before us on motions to from him while under arrest by the police dismiss or affirm.

officers of the state." Certain statements No assignment of errors was returned made by plaintiff in error, defendant below, with the writ, as required by $ 997 of the were admitted in evidence on the trial, but Revised Statutes (U. S. Comp. Stat. 1901, it does not appear that counsel objected to p. 712), nor is there in the brief of counset the introduction of this testimony on the for plaintiff in error on these motions any ground that any rights, privileges, or imspecification of errors under Rule 21, but munities of defendant under the Constituthe brief does allege that certain Federal tion of the United States were thereby questions were duly raised and so disposed violated. Counsel for the state offered in of as to sustain the jurisdiction of this evidence certain articles taken from decourt.

fendant's trunk, and this was objected to But if these questions are wholly without on the ground that they were taken in viomerit, or are no longer open by reason of lation of the state Constitution and without our previous decisions, it has long been set-defendant's consent. The objection was not tled that the writ of error should be dis passed upon, and the articles were withmissed.

drawn. The trunk and its contents were 1. Before the trial of the cause was com- again offered in evidence and objected to, menced, plaintiff in error applied for a but the objection was based entirely upon change of venue on the ground of local the ground of irrelevancy and immaterialprejudice.

ity, and the fact that a proper foundation The application was heard at length, and

had not been laid in the identification of forty-one witnesses testified in its support the trunk. and thirty-seven witnesses in opposition

When the state offered in evidence the thereto; and the trial court decided that statements made by defendant following his prejudice justifying a change of venue had arrest, the trial court excluded the jury not been made out, and denied the applica- and heard the testimony of the persons tion. It is now contended that the refusal present at the time for the purpose of deto grant the change of venue deprived plain- termining the competency thereof. After tiff in error of a fair and impartial trial, to the examination of a number of witnesses, which, under the Federal Constitution, he who detailed fully the circumstances under was entitled. The state supreme court held | which the statements were made, counsel

objected “because there is no foundation | quash had been disposed of, a plea in abatelaid for it and because it was [not] volun- ment was filed, averring that the prosecuttary.” This objection was overruled and ing attorney intentionally refrained from the evidence admitted.

indorsing the names of certain witnesses on The state supreme court held that the the indictment; that defendant was a native trial court, in admitting the testimony, of Great Britain and a subject of the King, did not commit error. This, notwithstand and that, by virtue of treaties, the law of ing the Constitution of Missouri provided nations, the laws and Constitution of the “that no person shall be compelled to tes- United States, and the laws of Missouri, tify against himself in a criminal case." defendant was entitled to know who were Its ruling upon that proposition is not sub- the witnesses against him. ject to review in this court.

A similar point, with like allegations, After the decision of the supreme court was made in the motion to quash. The in banc, affirming the judgment, plaintiff court heard the evidence on the plea in in error filed a petition for rehearing which abatement, and found the issues against was denied without opinion. The third defendant, except that it found that he was ground of that motion was as follows: "Be- a native citizen and subject of Great Britcause counsel for appellant, through neglect ain. and inadvertence, failed to call the atten- The question of citizenship is immaterial tion of the court to the proposition that as affecting the jurisdiction of this court the cross-examination of appellant, com- under $ 709, Rev. Stat. (U. S. Comp. Stat. plained of as 'improper,' and the admission 1901, p. 575). French v. Hopkins, 124 U. as evidence of statements or 'confessions' S. 524, 31 L. ed. 536, 8 Sup. Ct. Rep. 589. made by appellant while in the 'sweat box' Nor are we aware, as Chief Justice Waite of the St. Louis police department, was in said in Spies v. Illinois (Ex parte Spies) 123 direct violation of the Constitution of the U. S. 131, 182, 31 L. ed. 80, 91, 8 Sup. Ct. Rep. United States, article 5, Amendments to 21, of any treaty giving to subjects of Great the Constitution of the United States, in Britain any different measure of justice that it compelled the appellant to become than secured to citizens of this country. a witness against himsem.” The suggestion And the general rule of law is that aliens came too late, and, moreover, article 5 of are subject to the law of the territory the Amendments, alone relied on, does not where the crime is committed. Wildenhus's operate as a "restriction of the powers of Case (Mali v. Keeper of Common Jail) 120 the state, but was intended to operate sole-U. S. 1, 30 L. ed. 565, 7 Sup. Ct. Rep. 383; ly upon the Federal government.” Brown Carlisle v. United States, 16 Wall. 147, 21 v. New Jersey, 175 U. S. 172, 44 L. ed. 119, L. ed. 426; People v. McLeod, 1 Hill, 377, 20 Sup. C. Rep. 77. And if, as decided, the 37 Am. Dec. 328; Wharton, Confi. L. 819. admission of this testimony did not violate As to the allegation that the prosecutthe rights of the plaintiff in error under the ing attorney intentionally refrained from Constitution and laws of the state of Mis- indorsing the names of certain witnesses on souri, the record affords no basis for hold the indictment, in the motion to quash as ing that he was not awarded due process of well as in the plea in abatement, the state low. Howard v. Fleming, 191 U. S. 126, courts held that the charge was not sus48 L. ed. 121, 24 Sup. Ct. Rep. 49.

tained by the evidence. 3. Plaintiff in error filed a demurrer to The right of the accused to the indorsethe indictment, one of the grounds of which ment of names of witnesses does not rest was: “Because of the inconsistency, mul- on the common law, but is statutory, and tiplicity, and repugnancy of said counts, provided for in Missouri by § 2517 of the the defendant is being proceeded against in Revised Statutes of 1899, whereby the right violation of the state and Federal guaranty of the state to use other witnesses not so of due process of law, and in violation of indorsed is recognized. The state supreme his constitutional right to be specifically court discussed the matter at length, held informed of the nature and cause of the there was no error, and added: "Aside from accusation against him." The demurrer all this it is manifest that the defendant was overruled. And also a motion to quash has no right to complain of any prejudicial assigning similar grounds, which was like-error upon the action of the court upon wise overruled.

this motion. This motion was filed October These rulings in respect of the sufficiency 6, 1903, and the record discloses upon the of the indictment present no Federal ques- showing made upon such motion and plea tion. vard v. Fleming, 191 U. S. 126, in abatement that appellant had notice of 135, 48 L. ed. 121, 124, 24 Sup. Ct. Rep. these additional witnesses which were in49, and cases cited.

troduced by the state at the trial. The 4. After the demurrer and motion to I trial did not occur until the 23d of Febru

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