190 Ind. 385 | Ind. | 1921
— The appellant, with two others, was charged by indictment with murder in the first degree. When arraigned he pleaded not guilty, and also filed a special plea in writing that he was a person of unsound mind at the time of the commission of the offense alleged in the indictment. To this special plea the appellee filed a reply in general denial. The appellant was tried separately and a verdict returned by the jury finding him guilty of murder in the first degree and fixing his punishment at death. Judgment was -rendered on the verdict, and from such judgment appellant appeals. The questions presented by the appeal arise on his motion for a new trial and will be considered in the order in which they are presented in the brief.
It appears that one Wm. E. Anstiss, a witness testifying in behalf of the state, concerning certain statements, which he claims appellant made to him, testified as follows: “I am sheriff of LaPorte county. Steve Bartak and Ernest Gariepy are now at the LaPorte county jail, at LaPorte, Indiana. There were no threats made by anybody to Walter Baker when state’s exhibit No. 2 was taken. At Joliet, Illinois, I took a statement from Bartak. Bartak’s signature is attached ' to his statement. I saw him sign it. On the morning of the 29th day of August, 1919, in the county jail in .LaPorte- county, I read to Baker the Bartak statement in full., Q. I wish you would tell the jury what conversation you had with him leading up to that, and how it occurred and what Baker said and what you said? A. Why, Walter, in the police station in Toledo, wanted to talk to me, and on the train home; and finally, on the- train home, I says, ‘Now, Walter, I don’t believe you had better say anything, and I would rather you wouldn’t. If there comes a time when you want to talk and do yourself .any good I will let you know.’ The next morning I brought him down I told him I had been
So much of this confession, read to the appellant, as was explanatory of appellant’s own statements made in response to a question directly addressed thereto, was as competent as anything else said by appellant, on the issue of his insanity. The sheriff testified: “I told him there were some things that I wanted to know. I says, for instance, ‘Bartak states that he didn’t do any of the shooting.’ I says, ‘Now, to prove that, Walter, I want to read this statement to you.’ Q. Now, what did Baker — when you read that.to him, then what was said? A. Well, I says, ‘Now what I would like to know Walter, I would like to know if Bartak done any of the shooting there ?’ He sat for a while and he says, ‘Yes, he shot the first and last shot.’ ”
The following part of the statement of Bartak, read to appellant, was clearly admissible, as a part of this conversation between the sheriff and appellant: “The man made a grab for a can, and Baker shot twice. He . missed him. The man ran around the counter for the door and Baker fired three shots. Then ■ we ran. * * * Q. Now Steve, while you were in that store and had the gun in your hand did you at any time do any shooting? A. I did not fire one shot. There were five shots fired, and Baker was the one who fired them.”
In support of appellant’s contention he cites Batchelor v. State (1920), 189 Ind. 69, 125 N. E. 773; O’Hearn v. State (1907), 79 Neb. 513, 113 N. W. 130, 25 L. R. A. (N. S.) 542; Parker v. State (1920), 189 Ind. 85, 125 N. E. 772. These cases are not in point. In Batchelor v. State, supra, the defendant was kept in jail for three days, and his request to see an
In O’Hearn v. State, supra, the court reduced a death sentence to imprisonment for life and, in doing so, said: •“* * * in view of the evidence, which shows that Nelson, while not the oldest in years, was the oldest in crime, was the only defendant who was acquainted with the saloons in the part of the city where the crime was committed, that he with Angus purchased the revolver with which the fatal shot was fired, and that he was apparently the ringleader, and considering the further fact that the defendant has barely arrived at man’s estate, it is our opinion that the punishment imposed, taking all the circumstances of the case into consideration, is excessive.”
In the instant case no claim is made that the appellant had been denied his constitutional right to consult an attorney and be advised of all his rights concerning the charge against him, and it clearly appears from his own statement that he was the leading spirit in the commission of the crime.
The defendant claims irregularity in the proceedings of the court, in this, that one of the attorneys for the state examining one of the jurors asked the following question: “If it should prove to be a fact that this defendant had committed numerous other crimes, would that fact make you believe that he
The appellant contends that after the jury was sworn to try the cause, and in the course of his opening statement to the jury, one of the attorneys for the state was guilty of misconduct in making as part of his opening statement the following: “The state expects to prove, gentlemen, that in 1915, I say this to you as this only bears on the question of this young man’s insanity on the 24th day of December, 1918; that is all you can consider it for in the world; that in 1915, he went up into Montana and while he was up there he got into some trouble. He was working, I think, in. a mine, if my information is correct, either a mine or a mill, and got into some difficulty and had some words or something, and shot a man; didn’t kill him, however, and he was arrested and charged with murder. For some reason or other — he was young and inexperienced — he served but nine months. I think the crime was reduced to what they call up there ‘third degree assault.’ Just what that means I don’t know. And he served about nine months for the shooting of that man. After he got out he stayed there some little time and came back down into Illinois, first coming to Chicago, my information is.
The evidence will show that- he associated with men of criminal tendencies. As proof of that fact, in 1917,
“The state will ask that the court instruct the jury at this time that an opening statement will not be considered as evidence in this cause. I will say to you gentlemen, that this question is raised for a legal proposition in this cause, and should not prejudice you one way or the other. I will say to you now that the opening statement, which I am attempting to make to you here of what the state expects to prove is not evidence in this case. Unless we prove it, and the court rules that it is admissible in'evidence and lets it in, you haye no right to consider it. I will say further, the statements I have made on this question are made only on the issue of insanity. The defendant himself has filed his plea in which he sets up that he was of unsound mind on the 24th day of December, 1918, and it is the state’s contention and we believe we are right, that when once he raises the question that he opens his life to this jury like an open book for the purpose and the purpose only of testing the question of his mental capacity on the 24th day of December, 1918, and no other, I will say to this jury now that the state is not asking that you consider any of these other things that Walter may have been in, on the question of whether he is guilty of this offense. You are not trying him for those
This statement was not objectionable upon the issue of insanity as evidence which properly tends to show that the accused is of sound mind will not be rejected because it tends to prove another offense. See Gilbert v. State (1911), 172 Ala. 386, 56 South. 136; People v. Lane (1894), 101 Cal. 513, 36 Pac. 16; People v. Monat (1911), 200 N. Y. 308, 93 N. E. 982; State v. Flanney (1911), 61 Wash. 482, 112 Pac. 630; Hopps v. People (1863), 31 Ill. 385, 83 Am. Dec. 231.
The appellant contends that the court erred in overruling appellant’s motion to strike out parts of appellant’s statement, being state’s exhibit No. 2, relating to other offenses named in appellant’s confession and statement. But it must be remembered that all of defendant’s life was thrown open for investigation by this plea of insanity. All of defendant’s statement was admissible under the issue, and the trial court did not err in refusing to strike out parts of it. Neither did the court err in giving the jury the following admonition concerning such testimony viz.: “I admonish you that matters therein contained concerning defendant’s participation in an alleged assault in Montana, a holdup in Indiana Harbor or attempted robbery near Joliet, Illinois, or any other crimes or degrading acts not connected with the indictment shall be considered by you only for the purpose of determining the question of defendant’s sanity or insanity.”
Appellant claims that the court erred in permitting certain expert witnesses to answer in rebuttal a certain hypothetical question put by the prosecution relative to the issue of insanity.
It was held in Ditton v. Hart (1911), 175 Ind. 181, 93 N. E. 961, that an expert witness will not be allowed to give his opinion upon his recollection and construction of the evidence in the case. He must base his opinion on his testimony or upon facts assumed’to have been proved, which facts must be given to him as the foundation upon which to base his opinion. Appellant claims this rule has been violated in this case. We think not. In the beginning of the question the doctor is asked to give his opinion on an assumed state of facts, and the question closes with these words: “Now, Doctor, assuming the facts as already stated here in this question to be true, in your opinion was Baker, the subject of our inquiry on the 24th day of December, 1918, at the time of the murder of Cook, of sound or unsound mind?” The. same question was asked other doctors who had qualified as expert witnesses. These experts were asked to give an
The appellant insists that it was error to give instruction No. 8 at request of appellee, and claims that the instruction was a disparagement of the defense of insanity. This instruction was the same as the one given in Sawyer v. State (1871), 35 Ind. 80, except that it omitted the following sentence: “For the reason that if the accused were in truth insane at the time of the commission of the alleged acts, then he ought not to be punished for such acts.” This instruction cannot be commended, but its infirmity consists in what it fails to state, rather than in what it does state, and, when this omission is supplied by full and complete instructions which make clear the law upon the issue of insanity, in this case we cannot say that the giving of said instruction was reversible error.
The instructions in a case consist of a single charge to the jury. This charge is separated into paragraphs and numbered for convenience, but must be considered as an entirety. No instruction is regarded as independent and isolated, but rather as a related and connected part of the entire charge. The instructions as a whole in the instant case fully and fairly present the law upon the issue of insanity to the jury. We must assume that the jury was composed of men of average intelligence, and that they possessed a fair knowledge of the English language, and, that being the case, they were not misled by the instructions.
An instruction has been several times approved as follows: “This defense (insanity) is one very frequently made in cases of this kind, and is one which, I may say to you, should be very carefully scrutinized by the jury. The evidence to this point should be carefully considered and weighed by the jury, for the reason that if the accused were in truth insane at the time
In Sawyer v. State, supra, the court said: “It is also objected to the charge that it was calculated to prejudice the jury against the defense of insanity; that the jury were unduly cautioned to carefully scrutinize the evidence on that subject. The observations of the court in that respect meet our unqualified approval. As stated by the court, where the defense of insanity is interposed to a criminal prosecution, the evidence relating to it should be carefully and intelligently scrutinized and considered, for the double reason that * * * (as stated in the instruction).”
In. Sanders v. State, supra, the court said: “The court did not err in directing the jury that it was their duty to carefully scrutinize the evidence offered in support of the defense of insanity. The adjudicated cases all agree in holding that a careful scrutiny should always be given evidence offered to establish the defense of insanity in criminal prosecutions.”
In Butler v. State, supra, the court said: “That a man is inclined to view the defense of insanity with scrutinizing caution is no objection to his competency
In Aszman v. State, supra, a majority consisting of three judges said: “This instruction met with unqualified approval in Sawyer v. State, 35 Ind. 80, and the principle therein enunciated has been referred to approvingly in Sanders v. State, 94 Ind. 147 and Butler v. State, 97 Ind. 378. * * * A case might possibly arise in which such a statement could be appropriately made by the court. As the judgment in the present case must be reversed for other reasons, we do not determine whether or not it constituted reversible error in this case.”.
In the same case — Aszman v. State, supra — the two judges constituting the minority said, after quoting from Sawyer v. State, supra: “This is, as I am unalterably convinced, sound sense and sound law. If the decision stood alone I should be heartily for sustaining it, for I believe that it is .intrinsically right. But it does not stand alone, for it has been repeatedly approved. * * * Other courts have declared a like doctrine. * * * in this instance I am convinced that the court is departing from a decision not only without reason but against both reason and authority. The departure is, I deferentially affirm, a step in the wrong direction. Our decisions have already too greatly restricted the rights and duties of trial judges, and I am firmly convinced that it is a mistake to fetter them still more. A trial judge is, as I believe, more than a mere moderator, or a mere rehearser of stereotyped phrases, for it is his right and his duty to give
It is true that the omission from the instruction of the direction to carefully consider the evidence, “for the reason that if the accused were in truth insane at the time of the commission of the alleged acts, then he ought not be punished for such acts,” was improper and inexcusable. But where the fault of an instruction is merely the omission of a proposition of law, it can be supplied by putting that proposition, or its substance, in other paragraphs of the instructions, so as to carry to the jury the same idea. And of the instructions given by the court of its own motion, Nos; 6, 18 and 20 contained the following: “(6) * * * But, under the law of this state, the defendant would be entitled to an acquittal at your hands under his special plea, if the evidence adduced is sufficient to raise a reasonable doubt in your mind as to whether he was of sound or unsound mind, at the time the alleged offense is charged to have been committed.” (13) “Under our law a person of unsound mind cannot be convicted of any crime; and it does not matter what caused the mental unsoundness. If at the time of the alleged commission of the offense charged he was a person of unsound mind from any cause he should be acquitted. * * * (20) “* * * You will bear in mind that neither the life nor liberty of the accused may be trifled away, and neither taken by careless or inconsiderate judgment * * * the accused, if he be insane at the time of the commission of this crime, ought not to be erroneously convicted; on the contrary, if he be of sound mind he ought not to be erroneously acquitted. Remember,, the defendant’s life and liberty are his most sacred and highest rights, and can only be forfeited by him for the causes, upon the condition and in the manner prescribed by law.”
. Appellant claims that the court erred in giving instruction No. 15, at request of appellee. This instruction was upon the issue of insanity and correctly states the law on that issue so far as it goes.
We have considered all the questions properly presented in appellant’s brief and find no reversible error.
Judgment affirmed.