131 Wis. 178 | Wis. | 1907
1. The most radical and conclusive assignment of error, though not the first in order on the brief, is the refusal of the trial court to submit any other degree of homicide than murder in the first and second degrees, although specifically requested in writing to submit third and fourth degrees of manslaughter. If the evidence, in any reasonable view, could support either of these lower degrees, this refusal was error; from which prejudice to the defendant is undeniable. Perkins v. State, 78 Wis. 551, 558, 47 N. W. 827; Terrill v. State, 95 Wis. 276, 291, 70 N. W. 356; Murphy v. State, 108 Wis. 111, 117, 83 N. W. 1112; Montgomery v. State, 128 Wis. 183, 197, 107 N. W. 14. Each of these crimes may be committed in different ways, and one phase of each consists in the involuntary killing. Secs. 4355, 4362, Stats. (1898). Since the discharge of the pistol, a dangerous and deadly weapon, was clearly by the volition of the accused, so that there was no element of accident or inadvertence therein, this-element of involuntary killing, as distinguished from a killing-
“Any person who shall kill another in the heat of passion without a design to effect death, by a dangerous weapon, in any case except such wherein the killing of another is herein declared to he justifiable or excusable, shall be deemed guilty of manslaughter in the third degree.”
It will be noted that the distinguishing elements here are (1) heat of passion; (2) absence of design to effect death; and (3) by a dangerous weapon. That there was evidence to establish heat of passion, as the phrase is used in the law,, the trial court was, evidently, fully convinced; for, throughout the charge on the issue of sanity, he over and over again explained to the jury the duty to refrain from a finding of insanity if the acts were due merely to heat of passion, — instructions which, in themselves, must have been erroneous and prejudicial if there was no evidence of such a state of mind. There can be little doubt, however, but that the jury might have found such a condition to exist TÍie evidence shows the defendant in a much perturbed and erratic mental condition for some days before the'homicide, from the relations between his wife and Langreet, and shows, as expressed in the statement of facts, certain very disturbing evtents and information on the night before and the day of the killing,
The next characteristic of the crime described by this section is that the killing shall be without a design to effect death. The evidence already recited, the suddenness of the shooting
That the third element, namely, the use of a dangerous weapon, existed, is undisputed. All these things might have existed without there having been either justifiable homicide, as described by sec. 4366, or excusable homicide under sec. 4367, of which we shall have to speak later. We are persuaded, therefore, that defendant was entitled to have the jury pass upon the phase of manslaughter in the third degree defined in sec. 4354, and that refusal of the request for instruction to that effect was error necessitating reversal and new trial.
2. We may say in this connection, for convenience, that we find no phase of the evidence at all consistent with justifiable homicide defined in sec. 4366, each phase of which involves some element of self-defense or enforcement of a duty; nor of excusable homicide under sec. 4367, which is excluded by use of a dangerous weapon, if by no other circumstance. "Hence must be overruled assignments of error upon refusal to submit such sections to the jury. Having reached the conclusion that the judgment must be reversed and new trial ordered, we proceed to consider such of the other assignments of error as present questions liable to have any significance upon such trial.
3. The sfate called the jailer who received defendant into custody, and first proved by him that he had a large experi
“From your knowledge gained from sucb observation and care of those people and from Duthey’s actions, conversations, and manner and appearance as you saw him at tbe jail Saturday night, September 23 d, and as you testified here, would you say be was sane or insane ? Answer: Sane.”
Hardly any question of mere practice is so clouded by an indigestible mass of rulings, dicta, and decisions as tbat of tbe admissibility of opinions of nonexperts as to sanity. What Mr. Wigmore in bis work on Evidence calls tbe arsenal from which have been drawn all subsequent arguments in favor thereof is the dissenting opinion of Doe, J., in State v. Pike, 49 N. H. 399, Tbe confusion on tbe subject is partially illustrated by an extended note to Ryder v. State, 100 Ga. 528, 28 S. E. 246, 38 L. R. A. 721. Practical application of rules witb reference to it will be found in Burnham v. Mitchell, 34 Wis. 117, 133; Yanke v. State, 51 Wis. 464, 8 N. W. 276; Boorman v. N. W. Mut. R. Asso. 90 Wis. 144, 62 N. W. 924; Crawford v. Christian, 102 Wis. 51, 78 N. W. 406; In re Guardianship of Welch, 108 Wis. 387, 84 N. W. 550; In re Butler's Will, 110 Wis. 70, 85 N. W. 678; Hempton v. State, 111 Wis. 127, 137, 86 N. W. 596; Lowe v. State, 118 Wis. 641, 655, 96 N. W. 417; Schultz v. Culbertson, 125 Wis. 169, 103 N. W. 234. A little consideration of tbe reasons why anything more than evidence of tbe actual physical facts observed by the witness should be allowed to be stated would greatly aid courts and counsel in this field. First, it is obvious that one not an expert can no more aid tbe jury by an, expert opinion as to sanity than any other fact or condition. If all tbe physical facts can be stated, tbe jury are as competent to form an opinion as tbe witness, and their province ought not to be invaded. But all experience teaches tbe frequent if not
4. A physician, who had heard part of defendant’s testimony and most of the other testimony on the issue of sanity, and who was informed, by a preliminary hypothetical question, of certain salient portions of defendant’s testimony which he had not heard, was asked:
“Row, Doctor, assuming these facts I have stated to be true, and assuming the testimony of the defendant which you heard to be true, do you see in those' facts and that testimony any indication that this man was suffering at any time from melancholia ?”
This is objected to as calling on the expert to weigh evidence and thereby perform the function of the jury. The answer finally given, after several objections, was to a reiteration of the same inquiry by the court, which did not contain all the restrictive elements of the question above quoted, but referred thereto, so that we think the witness could have understood it only as embodying those restrictions. The question of the manner in which an expert’s opinion can properly be taken upon the result of evidence already introduced was examined and discussed in the case of Cornell v. State, 104 Wis. 521, 537, 80 N. W. 745, and if, as we hold, the answer was finally given in response to the quoted question, it is apparent at a glance that none of the objections pointed out in that opinion exist. The question was confined to certain facts stated and certain other facts testified to by a single witness, and the expert was directed to answer upon the assumption of the truth of such testimony, so that there was no demand upon him to weigh evidence or to select between conflicting evidence or testimony that upon which he predicated his opinion. We think there was no error in permitting him to answer, nor in
5. Error is assigned upon an instruction on the issue of sanity as foll&ws:
“The jury is instructed that the defendant comes to trial presumed to he sane .and not insane. This throws upon him the burden of proof in the first instance. To escape, he must produce evidence of insanity at the time of the homicide sufficient notwithstanding all the evidence to the contrary to raise a reasonable doubt of his insanity as aforesaid.”
This method of expression is unfortunate, to say the least of it. While the proposition is no longer debatable in Wisconsin that upon such an issue the presumption is in‘favor of sanity, and the jury are to so find unless evidence leaves them in reasonable doubt on that subject, yet it is by no means true that the defendant must produce that evidence, nor produce evidence sufficient to raise a reasonable doubt. That doubt may arise just as well from evidence produced by the state Or from the very circumstances of the act charged, and the proper instruction on that subject is simply that if, after considering all the evidence before them, there remains in the minds of the jury any reasonable doubt of sanity, their duty is to find the accused insane. Such is the express behest of the statute. Sec. 4697, Stats. (1898)'. Indeed, the rule of law that there is a presumption of sanity goes little, if any, further than to constitute a rule of practice to the effect that, in the absence of any evidence bearing on the subject, there is no issue to be submitted to the jury. It is a rule important to the courts, but the communication of which to the jury is of doubtful propriety. We do not need to declare whether in every case an instruction such as that now criticised must be held reversible error. There is considerable analogy between the sugges
6. Another portion of the charge which is assigned as error is the following:
“It is contended by the defense that the alienations of the affections of his wife, her debauchment, and the breaking up of his family so affected his nervous system, so overcame and crushed him, that for a space of time covering the homicide reason was dethroned, conscience paralyzed, and the shooting of the deceased an act for which he was not responsible, and the jury is instructed that if such was the fact, of there is reasonable doubt whether or not such was the fact, they will find the defendant insane.”
In framing this instruction the court entered a field which is always perilous, namely, that of attempting to state to the jury the contentions of either party. It is in close analogy to attempts to state the evidence which we considered in Horr v. C. W. Howard Co. 126 Wis. 160, 165, 105 N. W. 668. When fairly and exhaustively done it may be helpful to the jury, but the view of the court is so liable to differ from that of counsel as to what are the most salient and important elements of the latter’s contention that any attempt in this direction is liable to be the subject of criticism as having omitted or subordinated the things upon which he most confidently relies. This attempt is an apt illustration. The circumstances on which appellant lays principal stress as accounting for a state of mind which he claims to have been irrational and insane were those attending the renewal of intimacy and personal
Eurther error is assigned upon the following instruction:
“The court, however, instructs the jury that if following the conduct of the deceased which the defendant claims to have been the cause of the homicide, while he still had power to reason and distinguish right from wrong as to the act in question, and conscience still protested, he determined upon the death of the deceased, and the homicide followed as the fruit of such determination, the homicidal act relates back to the time of such determination, although the' evidence shows that from that moment until he fired the fatal shot he was incapable of rational thought, carried captive to the crime by the fiend of passion and revenge that he had invited to his bosom.”
This instruction is most obviously erroneous and, in view of the situation, is prejudicially misleading. When analyzed it informs the jury that if one, while sane, determines upon the killing of another, they must find him sane although thereafter he became insane and was so at the time of the homicide. There is no limit of time declared which may not elapse between the reaching of the determination-to kill and the time
1. Further error is assigned upon an instruction as follows:
“So, if tbe defendant’s act in shooting bis wife was tbe result of temporary frenzy or passion arising from excitement or anger and not from mental disease or temporary dethronement of reason not brought about by bis own fault in yielding to anger or passion, then be is not exempt from criminal responsibility.”
Tbe vice complained of in this instruction, which also pervaded several others not specifically assigned as error, is that tbe jury were thereby informed that mental disease or temporary dethronement of reason would not exempt from criminal responsibility, provided they were brought about by bis own fault in yielding to- anger- or passion. We cannot escape tbe view that such an impression was reasonably capable of being conveyed by tbis charge, whether it was really tbe idea
“It is not inconsistent with intelligent action, with consciousness of what one is doing and of the responsibilities therefor; it is not such as to, temporarily even, dethrone reason, strictly speaking; destroy volition.”
Again, it was said to be such as to “ sway the reason regardless of her admonitions,’ but it is not presumed to be, nor
8. While the jury were deliberating upon the issue of sanity they returned in court and asked whether the same jury would have anything further to do with the case if defendant were found sane, to which the court, after some hesitation, gave them an affirmative answer. We cannot approve this course, although we may not feel that prejudice is so apparent that we should deem it ground of reversal in and of itself. The very purpose of sec. 4697, Stats. (1898), is to separate the issue of sanity from the other issues in the case so that the jury may dispassionately view that question, and, having resolved it, if in favor of sanity, may not be embarrassed in their consideration of guilt or innocence by the same questions. The question put by the jury signified at once to the court that at least some of the jurymen were opposed to finding the defendant sane, but that there had been at least some suggestion that this reluctance might be overcome if it was understood that the same jury should have the function of passing upon his guilt or innocence or upon the degree thereof, and the information could have been relevant to no other situation. Instead of aiding such possible compromise of convictions by assuring them that they would continue to try the case, the court should have told them that such information could have no relevancy to their present duty, which was to answer according to their convictions whether the sanity of the accused was established beyond reasonable doubt. Many of the reasons apply to this situation which have induced us to hold, with much persistency, that information to the jury by the court of the effect which answers to specific questions in
9. The defendant’s counsel, in writing, requested an instruction to the effect that if the jury had reasonable doubt of the guilt of the defendant they should find him not guilty, refusal of which is assigned as error. The charge before us is unique, in that, from beginning to end, there is no express statement to the jury of their duty to acquit if they entertained a reasonable doubt of any of the phases of homicide submitted to them. Doubtless to the legal mind that duty is implied in the very proper general instruction with which the charge was premised, that the presumption of innocence must prevail and defeat conviction unless overcome beyond a reasonable doubt. After definition of reasonable doubt the court instructed that the jury may, if their judgment and conscience so command, find guilt of murder in the first degree, which he then defines in the words of the statute. He proceeds: “Should the jury not find the defendant guilty of murder in the first degree, then in the second degree,” which he then defined. He then summarized:
“If, to conclude, the jury find the defendant guilty of murder in the first degree beyond reasonable doubt, they will so return by their verdict. If they do not find him guilty of murder in the first degree and do find him guilty of murder in the second degree beyond reasonable doubt, they will so return.”
It is difficult to understand how a judge could have failed to add at this point the correlative duty, in every respect as imperative, to find a verdict of not guilty if they entertain any reasonable doubt of both first and second degree murder. Juries should not be left to infer their duties from mere implication or inference, and, while omission to expressly direct will
10. Upon tbe trial of tbe issue of guilt tbe state called to tbe witness stand tbe court reporter and ashed him to read from bis minutes tbe testimony given by tbe defendant upon tbe trial of tbe issue of sanity. This was objected to on various grounds, but tbe only one presented as making its admission erroneous is tbat it was received with no reporter to take tbe oral testimony so read to tbe jury. We do not think it erroneous upon this ground. Every purpose of preservation upon tbe reporter’s minutes of tbat which was conveyed to tbe ears of tbe jury was accomplished by bis own ability to reduce to shorthand all tbat passed, except perhaps tbe reading from a paper, which be could copy at bis leisure into bis minutes. Tbe bill of exceptions discloses, over tbe certificate of the judge, exactly what be did read, and we cannot discover tbat any prejudice could have resulted to tbe defendant from tbe irregularity, if it were one. There might have been other grounds why it was improper to allow tbe testimony to go in, in response to this question. See Havenor v. State, 125 Wis. 444, 451, 104 N. W. 116; Wells v. Chase, 126 Wis. 202, 105 N. W. 799. But, as none such are argued, and prejudice is certainly very difficult to discover, we do not pass upon them.
11. Since tbe judgment must be reversed for grounds heretofore stated, we shall not discuss at any length a most unfortunate scene which transpired in presence of tbe jury at a time when they returned into court in tbe course of their deliberations upon tbe issue of guilt or innocence. Tbe court took occasion, upon tbe text of certain complaint by -defend
Several other errors are assigned, but we find all of them so lacking in substantial merit, or so immaterial to another trial, that we cannot feel justified to extend this opinion by their discussion. Neither need we call attention to certain colloquies between court and jury, which serve strongly'to indicate that the specific errors discussed were probably effective in inducing the jury to conclusions adverse to defendant in fields of evidence where otherwise they might justifiably have found more favorably to him.