19 Neb. 609 | Neb. | 1886
Plaintiff was convicted of murder in the first degree and sentenced to be hanged. He alleges error in this court, and, under the provisions of the constitution of the state, the execution of the sentence is suspended by act of law until the case is reviewed by the supreme court.
After the testimony for the state had been introduced a number of witnesses were examined who testified to their acquaintance with plaintiff in error, his habits of excessive drinking, intoxication, etc. Dr. Spaulding was called and
For the purpose of presenting one of the alleged errors relied on by plaintiff in error, and one which may arise upon a subsequent trial, I here quote from the record certain questions, objections, and the rulings of the court:
“ Q. When a man has been irresistibly in the habit of drinking intoxicating liquors periodically, to excess, and has contracted an irresistible desire for its use — when under the influence of liquor — what, in your opinion, would be his condition as to being sane or insane?
“ Objected to as incompetent. Sustained. Defendant excepts.
“ Q. When a man has been irresistibly in the habit of using intoxicating liquors for seventeen years more or less to excess, at intervals, say, from a week to six weeks apart, being drunk for two weeks and sober for a period between that and his next debauch, state whether such a man would be considered, during the time of his intoxication, as free from the disease known as dipsomania ?
“ Objected to as immaterial. Sustained. Defendant excepts.
. “ Q,. When a man has used intoxicating liquors for a period of ten years to excess, during from five to seven days at a time, then an interval of from four weeks to three months intervening between that and the next time when he used intoxicating liquor to excess, and so continued irresistibly to use it for from five to eight days, and so continued in that intermittent way to use liquor, being sober at times and drunk at others for ten years, what is your opinion as to his being entirely free from any disease known under the head of any of the general subdivisions of insanity while laboring under the influence of intoxicating liquor at any one of these times?
“Objected to as incompetent — sustained. Defendant excepts.”
The definition of dipsomania given by this witness, and which is no doubt correct, is as follows: “Dipsomania is an irresistible impulse to indulge in intoxication, either alcohol or other drugs — opiums.” This mania or disease is classed as one of the minor forms of insanity. Applying this definition to the first of the above interrogatories the question might be stated thus:
“ If a man has been suffering from dipsomania, and has contracted dipsomania, what in your opinion would be his condition as to being sane or insane?” The same observations are applicable to the second question, except that it is more obnoxious to the objection than the first, as the question is asked directly whether such a person would be “ free from the disease known as dipsomania?” The third is substantially the same except that the time referred to is “ while laboring under the influence of intoxicating liquor.” There seemed to be an .“ irresistible ” impulse operating on the mind of counsel to include the word “irresistible” in all his forms of interrogatory, and this, too, without any proof of the irresistible desire for intoxicating liquors on the part of plaintiff in error. It is true the testimony shows repeated intoxications for a number of years, but there is nothing which negatives the idea of these “ sprees,” as they are termed by the witnesses, being entirely voluntary. In fact, the power to refrain from the use of intoxicants for a considerable time is clearly shown. He became intoxicated as hundreds of other men with depraved appetites and passions do, but, so far as the testimony goes, it*615 was his pleasure to do so. The ruling of the court was clearly correct.
Objection was made to the examination of certain witnesses produced by the state, for the reason that their names were not endorsed on the back of the indictment. The objection was properly overruled. We know of no provision of the statute which was violated thereby.
Thomas Perionett, the officer who arrested plaintiff in error soon after the homicide, was a witness on the part of the'-state. He testified to certain statements made by plaintiff in error to himself and others after the arrest. This testimony was objected to as incompetent. "We are not informed anywhere in the printed argument of counsel for plaintiff in error as to the specific ground for .this objection, but suppose it is based upon the fact that the witness was an officer having the prisoner in custody at the time the statements were made. In such ease it is well settled that the statements or confessions of a prisoner to one in whose custody he may be, must be shown to be voluntary and without inducements held out by the officer, either of fear or hope, before they can be admitted in evidence. But in this case these conditions were fully shown.' The officer testified not only that he had not offered any inducements, but that he cautioned the prisoner not to talk to him, and advised him not to talk about the matter to any one. The testimony was admissible.
It is alleged that the court erred in giving certain instructions to the jury, which we will next notice.
The first instruction complained of is the seventh of those given by the court upon its own motion. It is as follows:
“Murder in the first degree is defined by our statute, which I have given you in my second instruction, and the definition there given by our law-making- power is so plain and concise that I feel confusion in attempting a further definition than a short repetition.
*616 “Should you find that Henry M. "Verpoorten was alive in Douglas county on the fifteenth day of March, 1885; that said "Verpoorten is now dead; that he died from an injury from the hands of some one other than himself; that he came to his death by a wound in the left side inflicted by a bullet discharged from a pistol; that the defendant discharged the pistol; that the defendant discharged the pistol and inflicted the wound of which said Verpoorten died — if you are satisfied of the truth of all the above stated facts beyond a reasonable doubt, then it becomes your duty from the evidence to hunt for a motive and design on the part of the defendant, and if you find from the evidence, beyond a reasonable doubt, that the defendant purposely, and with deliberation and premeditation, and with malice deliberate and premeditated, did the killing, then you should find defendant guilty of murder in the first degree.”
The first criticism which is made upon this instruction is as to the use of the word “ feel,” near the close of the first paragraph. It is said, and no doubt truthfully, that the instruction as originally written and read to the jury contained the word “fear” instead of “feel,” but that by the mistake or carelessness, or otherwise, of some copyist since the trial the word has been changed from “fear” to “feel.” That the learned judge told the jury that the crime of murder in the first degree was so plainly defined in the statute that he feared confusion should he attempt a more particular definition. An inspection of the language for a moment would impress one that such is the case. Clerks of courts should exercise particular care to see that the records of trials, including instructions, are correctly copied when making transcripts. It is of vital importance that such mistakes should not occur. While this mistake might not and would not work a reversal of the judgment, yet no latitude in such matters should be allowed by clerks. It is their duty to see that no mistakes are made.
The next instruction which it is deemed necessary to notice is the thirteenth. It is as follows; “You are instructed that if you are satisfied from the evidence that the defendant was, at the time of the killing, insane, aside from being under the influence of liquor, then you should acquit the defendant of all three of the grades of criminal homicide and turn him loose. If he was at the time insane he cannot be convicted of any oflfense whatever.”
It is argued with considerable degree of earnestness that the phrase “ and turn him loose,” as found in the instruction, while not so intended, was a reminder to the jury' that if plaintiff in error was acquitted by them he would be turned loose upon society, and be thus permitted to kill others as he had the deceased. And not only so, but that the jury by returning such a verdict would be held, to
But it seems to us that counsel have entirely omitted the vital objection to this instruction, and this being a case involving the life of plaintiff in error, and the instruction being excepted to, it is the duty of the court to protect him. The jury are told by it that if they are “satisfied from the evidence that the defendant was at the time of the killing insane, aside from being under the influence of liquor,” they should acquit him. In Wright v. The People, 4 Neb., 407, Chief Justice Lake, in discussing the rule of law in cases involving the insanity of a person charged with crime, lays down the rule as follows: “We hold the true rule to be that whenever there is testimony tending to rebut the legal presumption of sanity, the jury should be instructed, substantially, that unless they are satisfied beyond a reasonable doubt that the act complained of was not produced by mental disease, the accused should be acquitted on the ground of insanity.” This is now the well-established law
Instruction numbered sixteen and a half is complained of as not being based on or called for by the evidence in the case. As another trial must be had, we need not here copy the instruction nor discuss the evidence,, as the testimony in the subsequent trial will probably differ somewhat from the testimony in this record. It is well settled that the instructions must be based on the evidence. Meredith v. Kennard, 1 Neb., 319. Neihardt v. Kilmer, 12 Id., 38. City of Crete v. Childs, 11 Id., 257.
On account of the errors above noted the judgment of the district court is reversed, and a new trial ordered. The cause is remanded for further proceedings in accordance with law.
Reversed and remanded.