92 Neb. 24 | Neb. | 1912
Lead Opinion
In October, 1911, the defendant 'killed his brother, Charles Larson, by shooting him in the head. The defendant was convicted of murder in the first degree in the district court for Burt county and sentenced to imprisonment in the penitentiary for life. He has brought the case here for review upon petition in error.
There is no dispute as to the principal facts in the case. The question is as to the mental condition of the defendant and his responsibility for the act. The defendant is a’ small man, was in poor health and very hard of hearing, so that it was necessary to use an ear trumpet in ordinary .conversation. For many months there had been criminal relations of intimacy between the defendant’s brother, Charles, and the defendant’s wife. The defendant had suspected these relations for some time, and had at various times questioned his wife closely in regard to the matter, but she had continually denied that there were any improper relations between them. About the first of October she confessed to her husband that his brother Charles had attempted to take undue liberties with her, but insisted that it had not gone to extreme criminal relations. She seems to have fully repented of her part in the transaction, and had fully resolved to do everything in her
If the defendant is found guilty, a very important question is presented as to the degree of his guilt. If he was in a state of mind to be responsible for his conduct and planned beforehand to induce his brother to come within his power for the purpose of .taking his life, as might pos
The defendant induced his brother to come to the defendant’s place, Avitliout first informing him of the knowledge Avhich he had of the existing conditions, and when his brother arrived the defendant took him to a small shed Avhere the defendant had placed his double-barrel shotgun, and, after closing the door, took his shotgun in his hands and asked his brother if he kneAV why he called him there. He had represented that he had called him there for the purpose of helping him with some of his calves. When the defendant acknoAvledged that he called him there because of his relations with the defendant’s Avife, and inquired Avha.t he, Charles, Avas going to do about it, on being asked Avlmt he, the defendant, wanted him to do, the defendant told him that he Avanted him to leave the country and never show himself in that part of the country again. This Charles refused to do, but said that he would agree to neArer come again to the defendant’s place. This was not satisfactory to the defendant, and the defendant testified that he then showed Charles the statement which the defendant's wife had Avrttten and proposed that they call her. They both then left the shed, the defendant carrying his gun. There is evidence that the defendant afterwards
The theory of the defense is that the defendant was so exasperated by existing conditions, and the conduct of his brother at the time, that he was unable to control himself, and was not responsible for his act nor able to distinguish between right and wrong with reference to what he did. This presents the question as to the mental condition of the defendant at the time of the act, a matter always difficult to determine, and particularly so in this case, a question not for the court, but peculiarly one for the jury. If that question has been submitted to the jury withoxxt violating the substantial rights of the defendant, their verdict mxist be regarded as final; it cannot be interfered with by the court. The defendant called an expert 'witness, a member of the medical profession and of apparently good standing, who has had experience in treating diseases of the mind and had thoroughly exaxnined the defendant. In answer to' a hypothetical question which
1. The attorneys for the state insist that the defendant Avaived this privilege by answering upon his cross-examination various questions in regard to Dr. Hildreth’s examination and treatment of him. Some decisions are cited Avhich appear to hold, as maintained by Professor Wigmore, that if the person entitled to the privilege introduces evidence in regard to his physical condition at the time, it is competent to call his physician to rebut that testimony. Professor Wigmore says: “Certainly it is a spectacle fit to increase the laymen’s traditional contempt for the chicanery of the laAV, when a plaintiff describes at length to the jury and a crowded, court-room the details of his supposed ailment and then neatly suppresses the available proof of his falsities by wielding a weapon nominally termed a privilege.” á Wigmore, Evidence, sec. 2389. He says, hoAvever: “This is generally not conceded in the judicial rulings.” . Sec. 2390. He appears to derive his conclusion from his reasoning, and not from the language of the statute. He is discussing what the statute ought to be, and not what it really is. Sec
2. The witness was asked this question by the state: “Doctor, based on your - observations and your conversations and the different matters that you have detailed here that took place and which you have stated here which took place other than in a professional way, I will ask you, in your opinion, whether or not the defendant on that 3d day of October, 1911 — what his condition was as to being sane or insane?” Defendant then was allowed to cross-examine the witness as to his qualifications, from which it appeared that the witness had been the family physician for the family of the defendant, and had treated the defendant personally in that capacity during the several years last past, and the witness stated that, if he gave him an opinion as-to his mental condition, it would be based in part on what lie saw of him on that day of the tragedy and what he had known of him for years, and in part on the knowledge of what he had acquired respecting him which he had acquired while waiting on him as his family physician. After the cross-examination of Dr. Hildreth, the state propounded to him this question: “You can separate the conclusions which you drew from your professional calls * * * and your observations that day? You can give an opinion on that alone?” He answered : “I can.” He was then asked: “Doctor, based on your observations and your conversations and the different matters that you have detailed here that took place and which you have stated here which took place other than in a professional way, I will ask you, in your opinion, whether or not the defendant on that 3d day of October, 1911 — what his condition was as to being sane.or insane?” The objection interposed, that the question was leading and called for a privileged communication and the witness is incompetent, was overruled. The witness then inquired : “I am to base my answer on observations outside of my professional capacity?” The state’s attorney stated:
Under the conditions of this case as it then appeared to the jury, the evidence of this witness must have been regarded by the jury as of great importance. The witness had been the family physician of the defendant, and on the day of the defendant’s arrest the defendant and his wife went into the office of the witness, and in the presence of the witness discussed the conditions that confronted them, apparently, relying upon the relation that had existed between the witness and the defendant; the witness had not stated what circumstances and conditions he relied upon in forming his opinion, and the court had upon careful consideration decided in the presence of the jury that the evidence was proper, so that the jury would naturally rely upon the conclusions reached by the witness. If the evidence was properly received, it must be because the witness was qualified as an expert, because as a nonexpert his evidence was clearly incompetent under well-established rules in such cases. He made no attempt to relate to the jury the facts and circumstances and conditions upon which he based his opinion, and his testimony does not show sufficient familiarity with defendant to give any real value to his opinion.
Many courts have held that such evidence would be in
However that may be, we think the evidence was incompetent for another reason. The question propounded to him did not suggest anything in regard to the defendant’s situation, nor in regard to his mental condition preceding or at the time of the tragedy. If he confined himself to what he himself had observed in a social way and in casually meeting defendant, as he assumed to do, his answer would, not take into consideration the most material part of existing conditions. His answers show clearly that he did not consider that he was sufficiently informed in regard to existing conditions to give a valuable opinion on the questions propounded. He does not say what his opinion as an expert would be, but says that from these casual observations of the defendant he did not see anything that would lead him to the conclusion that the defendant- was insane. The jury had no' means of knowing what or how much the witness had seen unprofessionally that would be of any value in determining the question. So far as his answer to the question goes, he may not have observed and remembered enough to enable him to come to any conclusion upon the question. When he was asked if he could give an opinion as to defendant’s
3. It is insisted upon behalf of the defendant that the .court erred in allowing the daughter of the deceased to testify to the contents of a postal card received by him. Tt was assumed in the question that the postal card came from the defendant, and the witness testified, over the objections of defendant, that the substance of the card was a request to the deceased to “come over in the morning and help me Avith the calves.” There Avas no evidence that this card was Avritten by the defendant. The handwriting had not been identified, and it was error to receive it in evidence. This error Avas clearly Avith out prejudice to the defendant. The defendant himself, upon the witness-stand, testified that he sent this postal card to the deceased, and himself stated the contents of the card substantially as stated by the Avitness, and there Avas no ques
4. In the eighth instruction given to the jury, after reciting the facts necessary to be proved in order to find the defendant guilty of murder in the first degree, the court told the jury: “If, however, the state has failed to establish each and every of the above and foregoing propositions beyond a reasonable doubt, then you should acquit the defendant of the charge of murder in the first degree.” It is said that the law is that, if the state has failed to establish any one of the necessary propositions beyond a reasonable doubt, he should be acquitted. We fail to understand the reasoning of defendant’s attorney in regard to this instruction, and cannot see that the instruction as given by the court was erroneous. The same objection appears to be urged to the court’s instruction in regard to the crime of murder in the second degree and in regard to the crime of manslaughter.
5. In the fourteenth instruction the court, after defining the defense of insanity, uses this language: “If upon consideration of the whole testimony you are satisfied beyond a reasonable doubt that at the time of the alleged shooting the defendant was sane, then you should find against him on the issue of his insanity.” It is urged that the court should have said that, unless they were so satisfied, they should find the defendant not guilty, and not merely inform the jury that they should find for or against him on'the issue of insanity. There might be some merit in this objection if it were not for the fact that in several other instructions the court plainly told the jury that, unless they found beyond a reasonable doubt that the defendant was sane at the time of the shooting, they must find him not guilty. Taking the whole instruction together upon this point, the jury could not have been misled.
7. Upon the trial the prosecutor produced the hat worn by the deceased at the time of the shooting. There is no controversy in the case as to the action of the defendant nor as to the death of the deceased. This exhibition of the torn and blood-stained hat would have no purpose except to arouse the passion of the jurors. When, however, it was offered in evidence and objected to, the offer was withdrawn, and it was not put in evidence. If this evidence had been received over the objection of the defendant, it might have constituted reversible error, as held in McKay v. State, 91 Neb. 281. If the prosecuting attorney, knowing that such evidence was incompetent, had purposely exhibited the hat to the jury with the intention of thereby prejudicing them against the defendant, it might have constituted such misconduct as to have required a reversal, but we do not find evidence in the case justifying the conclusion that the prosecuting attorney was in this case guilty of such misconduct.
Other questions discussed will not probably arise upon another trial.
The judgment of the district court is reversed and the cause rem.and.ed for further proceedings.
Reversed.
I think the defendant is entitled to a new trial on other grounds; therefore I concur in the conclusion only.
Concurrence Opinion
concurring.
I concur in the judgment of reversal, but not upon the grounds assigned in the opinion. I prefer to base my conclusion upon the ground that defendant has not had an
Dissenting Opinion
dissenting.
My understanding of the evidence and of the law applicable thereto is radically different from that' of the majority. Defendant shot and killed his brother, October 3, 1911. This fact cannot be successfully controverted, and there is no attempt to do so. Unless the jury could have found from the evidence that defendant, at the time of the homicide, was insane Avithin the meaning of the criminal law, there Avas no justification whatever for a verdict of acquittal. After defendant had adduced testimony tending to sIioav he was insane, the state called in rebuttal Dr. Hildreth, who ansAvered a question as follows: “I saw nothing to indicate to me but what he was competent and sane.” The refusal of the trial court to strike this answer out of the record on motion of defendant is, according to the opinion, an error; and a reason given for setting aside the verdict of the jury is as fol