169 Ky. 735 | Ky. Ct. App. | 1916
Opinion op the Court by
Affirming.
The appellant, Julius Babey, was tried in the Jefferson circuit court, criminal division, under an indictment charging him with the murder of his wife, Agnes Babey, whom he shot and killed in the city of Louisville, April 24, 1915. The jury by their verdict found him guilty of the crime charged and fixed his punishment at death. He complains of that verdict and the judgment entered thereon, hence, this appeal.
The crime was admitted by the appellant' and, according to the evidence, was deliberately planned and brutally executed. The motive therefor, shown by the evidence, was the institution by the wife, a few days previously, of an action against him for a divorce and the custody of their children. The bringing of the divorce suit seemed to have greatly angered appellant toward his wife and her mother, with whom she and her children were living because of his inability or unwillingness to support them. The only defense interr posed by appellant on the trial was that he was insane at the time of the homicide and by reason thereof not responsible for his act. The grounds urged in support of the motion for a new trial in the court below and now relied on for a reversal of the judgment of conviction, are: (1) Alleged error of the circuit court in excluding competent evidence offered in his behalf on the , trial; (2) Misconduct of the Commonwealth’s .attorney in making improper statements in argument to the jury; (3) Failure of the court to properly instruct the jury; (4) Newly discovered evidence.
• In order that the questions thus raised may be understandingly disposed of, consideration of the material facts furnished by the bill of evidence will be necessary. In brief they are as follows: Appellant was twenty-four years of age when the crime was committed.
Con O’Leary, the policeman who placed appellant under arrest' following the shooting, testified that the latter, without any questions from him, voluntarily told him that “Mary Babey was to blame for all this trouble.” The Mary Babey referred to was the wife of appellant’s uncle. This statement was made by appellant to the officer before his removal from, the place of the shooting and while his wife was still alive. After this statement was made to the officer he immediately conducted appellant to police headquarters, where in the presence of Col. Lindsey, chief of police, his person was searched and a letter, identified as in his handwriting, was removed from his pocket and read by Col. Lindsey. The letter was addressed to his mother and was as follows:
“Dear old mother — ■
I do hope that you will forgave me for doing this, for it is not my fault, Harry Thorpe and my wife have dog me for the last four years, and now they try and take my babies from me, and that is something that I cannot stand. Tell Mary Babey that, if I never took my wife in her house this trouble would never have happened. She is the cause of it all. Well mother don’t worry about me. Tell Scott to be good and take good care of you and my babies. Tell them all good-bye. Will mother I will say good-bye for the time.
“Son Julius.”
The only issue of fact about which there wa,s . any diversity of opinion or contrariety of proof was as to the appellant’s condition of mind at the time of the commission of the crime. The strongest evidence as to his alleged unsoundness of mind was furnished by the testimony of his mother, Mrs. Florence Babey, his sister, Mrs. Gertrude Smith, and the wife of his uncle, Mrs. Mary Babey. The mother testified that appellant when about twelve years of age received a blow upon his head from a brick, but how or by whom the blow was inflicted was not explained by her or anyone else. Her testimony bearing on the question of his condition of mind was as follows:
“Tes, when he was about twelve years of age he got a lick with a brick and we didn’t pay much attention to it then, we didn’t think it would hurt him; in about three days after that he had a high fever and we had to have the doctor for him about two weeks or maybe more, or I think it was about two weeks, something like that, and had his head bandaged, and ever since then the boy has not been right at all.
“Q. Just state to the jury in your own way what you have observed in reference to his mental condition? A. When I would go in his room to wake him he would jump and act like he was wild and I said to him, ‘you just act like you are crazy, what in the world is the matter with you,’ and he has carried on that way ever since. He has been often lying on a couch and look up to the ceiling and would act like he didn’t know what he was doing. I really had to watch him half of the time, and I said to the family, ‘I wonder what is the matter with that boy?’ * * * Once when I went out in the kitchen he was sitting there eating and looked at me, and said, . ‘I will get you some day,’ and I looked at him, I didn’t know what he meant. I said ‘What is the matter with you?’ He said, ‘Never mind, I am going to get you’—*740 jumped on us that way just for nothing; we didn’t know what it was for; one evening there was a neighbor came along and was talking to me and he came in; he just looked like a lunatic; we could not get over it how he spoke to me and hopped on all of us; and I was in bed the next day from the way he went on to me and to her. Q. "Was there any cause or provocation for him doing those things? A. None whatever. Q. What was his conduct with reference to his brothers ? A. He would just get after them for nothing at all; we would be sitting there talking and the first thing you know he would be in a racket with them. Q. Did he have any cause or provocation to do those things? A. None whatever, he would just jump up and do that; we didn’t know what was the matter with him, it would take us some time to get him quieted down. Q. What was his conduct towards his sisters? A. He didn’t treat them very good either; he didn’t like them very well, they didn’t suit him half the time. Q. Did he have any reason or cause to be angry with his sisters? A. No, sir, they treated him very nice, the girls did. Q. How long have these peculiar actions on his part been noticeable? A. Since he was hit; since he was twelve years old he has not acted right, he has done queer things, he has not been right at all.”
On cross-examination the witness admitted that appellant worked and made his living all the time he lived with her family. When asked if she did not try, the preceding winter, to get appellant’s wife to live with him, she answered: “No, I asked her if she would make up with him; she said no, she wouldn’t do it; and if she would write to Mm; she said no, she wouldn’t go to the comer to get a postage stamp.” Upon being further asked if she did not try to persuade the wife to go back to appellant and live with him, she answered: “No, I did not, I don’t think.” She also admitted on the cross-examination that she had never attempted to have appellant confined in an asylum, his condition of mind investigated by a physician, or had a physician to attend him, except during the illness resulting from the blow on his head from the brick.
The testimony of the sister and aunt, though in large measure corroborative of that of the mother as to the condition of appellant’s mind, was not so positive or specific in detail as was hers, that of the sister being to
On another occasion and after appellant’s marriage, the sister visited him and family in Louisville, and with respect to his conduct during that visit she was asked: “What was his conduct upon the occasion of your visiting at his home? A. During the time I was visiting at his home in December? Q. Yes? A. He went down — his wife told him to go down to get some coffee and he went down to Kieffer’s grocery and took a drink; when he came back upstairs I noticed right away he was not feeling just right at the supper table; he abused me very much and I tried to talk to him and I saw the more I tried to talk to him the worse he was and I just left. Q. Did he have any cause or occasion to abuse you? A. None at all except drinking, I suppose. Q. What did he do the next morning? A. lie sent his wife up — I think he put his wife on the car to call to apologize to me for what he said during the night; three or four times he wanted to get her to come up home and apologize to me because he had mistreated me.”
On cross-examination the sister admitted that she had no knowledge of appellant’s having received a blow on the head from a brick, although that event, according
The only thing testified to by the annt in addition to what was stated by the mother and sister, was that appellant was absent-minded and would sometimes sit and talk and mumble to himself and appear to be disinclined to engage in conversation with others; that he was at times also despondent and would even cry. This witness, however, admitted on the cross-examination that she drove appellant out of her house on one occasion because of his abuse of his wife and his refusal to desist from such abuse when requested by her.
Of the other witnesses introduced as to the condition of the appellant’s mind, Harry Lewis, clerk of the Archie Hotel, Louisville, testified that appellant registered at that hotel upon his return from Chicago before the homicide; that he was up at frequent intervals during the night and drinking heavily and had whiskey in his room; that he asked appellant in a joking way what was on his mind, to which the latter replied: “Nothing, but I can’t rest; I just got in from Chicago; the trip was long and tiresome and I can’t rest;” that the last time he saw him was about four o’clock on the morning of the homicide; appellant then had a fresh bottle of whiskey in his possession and the witness, at his request, took a drink with him from the bottle; that his talk was then disconnected and incoherent. On cross-examination the witness was asked: “You did not think he was crazy, did you? A. No, sir, I didn’t think he was crazy. Q. You are not in the habit of drinking with crazy people at the hotel, or anything like that? A. I didn’t think he was crazy because I took him to be more under the influence of liquor than anything else.”
Another witness in appellant’s behalf, Yirgil Thomas, baggage master at the Louisville Hotel, testified that he had known appellant four or five years; that he saw him at the Louisville Hotel the afternoon before the shooting; that he was drinking at that time, his eyes were red and his face swollen. Witness gave appellant permission to go in the writing- room of the hotel and write a letter, and afterwards he came out to' where the witness was with a letter in his hand and asked witness to go to the bar and take a drink with
The witnesses James Duncan, Paul Jones and Scholard Baird, introduced for appellant, testified as to their presence at the jail following his incarceration, and as to the fact that he. then seemed to be under the influence of intoxicants; that in the afternoon following his incarceration in jail he became ill and later fainted and was then given an emetic, followed by milk and egg, because of the opinion entertained by the jail authorities that he had taken poison. Appellant’s remaining witnesses, Margaret Doyle, Alice Wagner, William Konz and Mrs. Harold Eoff, the latter being a resident of Chicago, at whose house appellant at one time boarded, testified as to his habit of at times drinking to excess, his moods of despondency or melancholia, and his absent-mindedness.
' With the exception of the relatives of appellant mentioned, few if any of the witnesses introduced in his behalf expressed the opinion that he was of unsound mind; and none of the witnesses, unless it was the mother and sister, stated that his unsoundness of mind was such as to prevent him from distinguishing between right and wrong. The appellant himself testified in the case, but claimed to have had no recollection of anything that took place at the time of the homicide or during the morning hours preceding its occurrence. He, however, appeared to have a clear recollection of events occurring the day before and previously, extending back
Mrs. Kate Thorpe, appellant’s- mother-in-law, and Prank A Webb, a friend of his of many years’ standing, were introduced by the Commonwealth in rebuttal on the question of his condition of mind, and both testified that during their acquaintance with appellant they had never seen anything in his conduct or actions indicating that he was a person of unsound mind, and that they had never heard any intimation from his family or otherwise that- he was of unsound mind. Mrs. Thorpe further testified that when in front of Mrs. Johnson’s house and after appellant had there shot his wife, she said to him “You have killed Agnesthat he thereupon looked at her and said, “Yes, I have killed her,” and that in her opinion he then knew and realized what he had done.
Webb’s testimony, so far as material to the question under consideration, is here given:
“Q. Plow long have you known the defendant? A. I don’t know any estimated time, but I have known him a pretty good while, several years. * * * Q. What opportunity have you had to observe his actions and conduct? A. He lived in the front of the same house I did. Q. Did you ever see anything in his conduct to indicate that he was a lunatic or person of unsound mind? A. No, sir. Q. Did you think he was able to judge the difference between right and wrong? A. Yes, sir, when he is sober he does. Q. When he was drunk would he act-like any other drunken person. A. Pie would come in and fuss. Q. He would fuss with - A. His wife. Q. Did you see him fuss with anybody else particularly? ■A. No, sir, outside. Q. Pie would fuss with his wife when*745 he got drunk? A. "When he got drunk. Q. Did you ever see anything wrong outside of that? A. No, sir.”
No physician testified on the trial as to appellant’s state of mind at the time of the homicide or that he was ever insane, nor does the record show any effort on the part of appellant or the Commonwealth to procure the attendance or evidence of medical experts. The evidence heard on the trial cannot be said to convincingly establish the defense of insanity. It does, however, show that appellant was a man of little force of character, intemperate in his habits and inefficient in providing for his family; that he was also possessed of a violent and ungovernable temper and when under the influence of intoxicants would abuse and otherwise mistreat his family and at times threaten and assault his wife. But it does not follow from these defects in the character of appellant, or because of his infirmity of temper, that he was insane at the time of killing' Ids wife. To excuse the homicide on the ground of insanity the evidence must have been sufficient to establish the fact that appellant was without sufficient reason to know what he was doing or to know right from wrong, or that as the result of mental unsoundness he did not then have sufficient will power, to govern his actions and was actuated by an insane impulse which he could not resist or control. We are unprepared to say that the evidence introduced in support of the appellant’s defense of insanity, was sufficient to overcome the legal presumption of his.sanity required by the law, and the evidence introduced by the Commonwealth in support of that presumption. At any rate, the issue having been decided by the jury under proper instructions adversely to the appellant’s contention, he must accept and we must approve the verdict of guilty, unless the alleged errors of the trial court complained of shall be found .to compel a reversal of the judgment.
Appellant’s first complaint is as to the ruling of the trial court in excluding from the consideration of the jury the following questions asked Mrs. Florence Babey and the answers it was avowed she would make thereto: “ Q. Did you at any time have any conversation with his (appellant’s) wife in-reference to his mental condition?” To this question the avowal indicates the witness would have made, the following answer: “That Agnes Babey, appellant’s wife, stated to the witness
“An extra-judicial statement may serve, as few other things can, to illustrate the condition of the mind of the -speaker. Distinguishing, in the present connection, the actual force and power of the mind itself from proof of its contents, those mental states which are also seen to be established by the relevant utterance to which they give rise, it may fairly be said that the actual constitution of the mind is often appropriately so shown by these verbal manifestations, as in the case of declarations by a testator. In their .assertive capacity, as proof of the facts which they declare, the unsworn statements are hearsay; and, in the absence of some special reason for receiving them, are to be rejected. As a general rule, narrative statements of past transactions which are without a circumstantially relevant quality are to be excluded.
“The only person whose extra-judicial statement indicating mental condition is regarded as admissible, because possessing an independently relevant or circumstantially probative quality, is the individual whose mental condition is- in question. Coming from any other declarant the statement is to be rejected as hearsay. Not even the- closest relationship, such as that of a father, wife, or other member of the family or the most confidential intercourse, e. ‘g., that with a legal adviser, enables a person so circumstanced to make an effective unsworn statement regarding the- mental condition of another. ’ ’
The complaint of misconduct on the part of the Commonwealth’s attorney arises out of the following statements made by him in closing the argument to the jury:
‘‘ Gentlemen, I was not surprised at the plea in this case, because the criminal records of this State and the criminal records of all the states in this great Uniou show that it is in cases of this character, in cases of particularly horrible character, when there is no other refuge, when there is no other salvation, the guilty and red-handed criminal seeks the defense of emotional insanity * * * and the records of our courts show, and I say it with shame and with sorrow, that too often juries have been willing to accept the miserable pretense of emotional insanity and thereby free the red-handed criminal from the consequence of his horrible deeds. ’ ’
In making the statement referred to, the Commonwealth’s attorney mentioned a condition generally known to exist in this State and elsewhere. Undoubtedly in criminal cases, insanity is a much abused defense, because so often resorted to when no other excuse can be shown for the crime. The reference made to its abuse was a legitimate deduction from the evidence and but stated a condition shown by the records of the court, constantly discussed in the newspapers and other publications of the day, and, therefore, as well known to the jury historically as any other fact of which they, in common with all other citizens of the State, had knowledge. The statement was closely akin to one
“The attorney was evidently warning the jury of their duty as part of the machinery of the law for the punishment of crime, that personal violence resulting in innumerable deplorable tragedies, the history of which was well known, was due to the lax administration of the law, and that all such could best be deterred by a prompt and stem enforcement of the law against homicide in each case by the jury trying it. We do not think the line of argument was objectionable.”
Again, in Houssman v. Commonwealth, 128 Ky. 818, it is said:
“Much latitude is of necessity allowed an attornej* in the presentation of his case, the only limitations being, such as require him to confine himself to the facts introduced in evidence, and the fair and reasonable deductions and conclusions to be drawn therefrom, and the application of the law, as given by the court, to the facts-proven. ' Controlled, regulated, and bounded alone by these limitations an advocate may, with perfect propriety, appeal to the jury with all of the power, force, and persuasiveness which his learning, skill, and experience enable him to command; and of this character- of argument the accused may not complain, even though he feels that his conviction may be traceable more directly to the argument of counsel than to the facts proven.” Oldham v. Commonwealth, 136 Ky. 789; Lee v. Commonwealth, 142 Ky. 742; Ball v. Commonwealth, 27 R. 448; Sturgeon v. Commonwealth, 31 R. 536.
The complaint made by appellant, of the instructions is without merit. By them the- jury were correctly told in what state of case they would be authorized to find the appellant guilty of murder, voluntary manslaughter, involuntary manslaughter, and what punishment appertained to each; also what would authorize a verdict of acquittal for accidental killing or on the ground of insanity or self-defense, while in and through them separately and as a whole ran the admonition to the jury to allow appellant the benefit of every reasonable doubt in the matter of determining his guilt or innocence, or, if they found him guilty, in determining the degree of his
The newly discovered evidence on account of which the new trial was sought is furnished by the affidavits of several alienists, some of whom are eminent in their profession, to the effect that they made an examination of the appellant after the trial and were satisfied that he is suffering from a mental disease known as a “paranoid” form of “dementia praecox,” a form of insanity that is progressive, incurable and finally fatal, which might have been caused in his case by a blow on the. head in childhood, contributed to by his habit of intoxication, but was more probably due to inherited taint transmitted by the father through a venereal disease
It is also to be remarked that the evidence furnished by these affidavits is an entire departure from that introduced on the trial to establish the appellant’s insanity, which fact puts the appellant and such of his family as aided in his defense in the reprehensible attitude of having experimented Yith the court and with' justice, and would, if a new trial were granted, permit'
As on the whole case we find no error that can be said to have prejudiced the substantial rights of the appellant, and are convinced that he had a fair and impartial trial, though the punishment thereby resulting to him will be the severest known to the law, it is our painful yet imperative duty to allow it to be executed. Wherefore the judgment is affirmed. Whole court sitting.