118 Wis. 641 | Wis. | 1903
There is no claim that the evidence is insufficient to support the verdict. Counsel for the accused insists, however, that “the evidence was amply and abundantly sufficient to carry the question of the accused’s insanity to the jury.” Numerous errors are assigned.
1. It is claimed that the court lost jurisdiction because two days after the jury had disagreed and been discharged on the trial of the special issue of insanity, and the court had forthwith ordered “the trial upon the plea of" not guilty to proceed” as prescribed by the statute (sec. 4697, Stats. 1898), an order was made and entered, with the consent and concurrence of the accused and his attorney, continuing the cause until the next term of the court. Counsel for the accused frankly concedes that such consent and concurrence was as broad and ample as possible, but suggests that by such continuance the court lost jurisdiction. There is nothing in the statutes prohibiting such continuance, and it is very manifest that the ends of justice and the rights of the accused might imperatively require such continuance. In all criminal prosecutions, the accused is entitled, as a constitutional “right, to a speedy public trial” in “the county or district wherein the offense shall have been committed” (sec. 7, art. I, Const.) ; and yet this court has held that such right “is waived by the accused when, upon his application, the place of trial is changed to another county.” Bennett v. State, 57 Wis. 69, 75, 14 N. W. 912; Wheeler v. State, 24 Wis. 52. Certainly, the court did not lose jurisdiction by such continuance of the case at bar. We perceive no good reason why the consent and concurrence of the accused and his attorney to such continuance was not a waiver of any objection to the same.
2. We find no reason for arresting the judgment on the ground of defective verdict. The information, with appropriate allegations, charges the accused with having made an assault upon Amanda Lowe with loaded revolver and razor, “with intent then and there, feloniously, and of his malice
3. Error is assigned because a witness for the prosecution (Bertha Montgomery) was not allowed on cross-examination to testify as to whether, on the preliminary examination, she had not stated that he had jealous spells about every two weeks. . She had already testified, on cross-examination, that she might have said on the former trial, in effect', that on the morning of the assault the accused looked pale, considerably more than usual; that he had one of his funny jealous spells; that it was a fact that she thought he was jealous; that she always said he was awfully jealous'; that his look was more unusual that morning than before; that she did not expect to find him at home that morning, as she knew he was having one of his funny-jealous spells; that his strange look that morning made her watch him; and that he did not look as he ought to on that morning. The ground stated for excluding such further cross-examination is to the effect that it was improper on such “cross-examination to go- generally into the life of” the accused; but that the defense was at liberty to inquire as to anything connected with the conduct of the accused on the morning in question, and perhaps the evening before, or any past experience which might explain the conduct of the accused. We perceive no prejudicial error in such ruling.
4. Error is assigned because the court refused to allow the accused to prove that one Martin Bigger, a witness for the prosecution, made statements out of court contrary to his testimony in court. He testified to the effect that three or four months prior to the assault in question, the accused was at Merrillan, and he saw him buy a revolver and a box of cartridges at a hardware store; that he and the accused then
One of the issues on trial was as to the sanity of the accused. The only hope of the accused seems to have been based upon the determination of that issue. The testimony of Bigger tended to prove that a short time before the shooting the-accused bought the revolver, with the avowed purpose of shooting his wife. Of course, he could have no such intent
5. Dr. Lyman, superintendent of tbe Hospital for the'Insane at Mendota, was called as a medical expert witness on tbe part of tbe accused, and in answer to a hypothetical question, testified to tbe effect that in bis judgment tbe accused was insane at tbe time of tbe shooting, June 12, 1899. Then, after being cross-examined by tbe state to tbe extent of twenty-one type-written pages, tbe court asked him this question :
“What would you say, doctor, of the three hundred men who burned the negro at the stake in Colorado; stood there, and lighted the fire, and stood by when be was begging to be shot; waited around, and watched the flames lick up bis body — what would you say about the sanity of those men ?”
“I should think they were sane; that they were acting under what we call knob influence’ at the time, and their emotions got the better of them.”
We agree with counsel that the question was improper and the answer irrelevant; but it is conceded that no objection was made, much less an exception taken. This court has, from the beginning, refused to review rulings upon the trial of criminal cases, as well as civil, to which no exception was taken. Knoll v. State, 55 Wis. 249, 12 N. W. 369; Rollins v. State, 59 Wis. 55, 17 N. W. 689; Grottkau v. State, 70 Wis. 462, 472, 36 N. W. 31; Porath v. State, 90 Wis. 537, 63 N. W. 1061; In re Roszcynialla, 99 Wis. 537, 538, 75 N. W. 167, 168. In this last case it is said:
“In the trial of causes, as' well as other matters conducted by human agencies, there will, unavoidably, be more or less inadvertence, irregularity, mistake, impropriety, and error. . . . By reason of these things, parties and their counsel, in criminal as well as civil cases, are required to bring any supposed impropriety or error to the attention of the court, and obtain a ruling or action thereon, at the earliest opportunity, in order to become available. Even then, the party feeling agggrieved must promptly take, and preserve in the record, his exception, or the supposed error will be deemed waived.”
Counsel says that “it is sometimes a delicate thing for counsel to object to a question asked by the court.” The authorities all seem to agree that the trial judge has the right to ask questions of witnesses when, necessary to elicit the truth. See note to South Covington & C. St. R. Co. v. Stroh, 57 L. R. A. 878 et seq.; citing numerous adjudications. But if the trial judge asks an improper question, then it becomes the duty of counsel to call his attention to it at once, so that it may be immediately corrected. By reason of the failure to make such objection and take such exception,
6. Error is assigned because Dr. Conroy was permitted to. testify as a medical expert. The objection is upon two grounds. One is said to be bis lack of experience in sucb matters. It appears that be bad graduated at a regular medical college, and bad a license to practice medicine from tbe state board of this state, and had practiced therein for eighteen months; that the medical college be so attended' bad an insane pavilion, which would accommodate about thirty patients ; that while be was there be bad an opportunity to see and study, and did study, about one hundred such cases; that during bis practice of eighteen- months be bad bad four such cases to treat. Such actual experience certainly made him competent to testify within the rulings of this court. Stilling v. Thorp, 54 Wis. 528, 534, 535, 11 N. W. 906; Boyle v. State, 57 Wis. 472, 15 N. W. 827; Soquet v. State 72 Wis. 659, 40 N. W. 391; Zoldoske v. State, 82 Wis. 580, 605, 52 N. W. 778. Tbe other ground upon which sucb objection is. made is that tbe witness was precluded by tbe statute, vvhicb provides that “no physician shall be appointed sucb examiner in lunacy” of applicants for admission to tbe State Hospital for tbe Insane, “unless be shall be a graduate of a legally incorporated medical school, and shall have bad at least three years’ experience in tbe practice of bis profession, or shall have bad one year’s experience as physician in an insane hospital after bis graduation, and shall be registered by sucb county judge as thus qualified on a list to be kept for that purpose in bis office.” Sec. 585, Stats. 1898. Tbe proceed-' ings prescribed by that section are special, and practically ex parte. That section does not prescribe tbe competency of physicians or surgeons to testify as witnesses in courts of'justice. Tbis is manifest, not only from tbe language of that section, but from other sections of tbe statutes. Thus a pby-
7. In answer to some twenty odd assumptions of fact, Dr. Conroy testified that in his opinion the accused was sane at the time of the shooting. The same witness was then asked this question:’
“If you were to assume that for the period of twelve mpnths immediately preceding his second marriage, defendant kept company with the woman who afterwards became his second wife, at which time he had a wife living, and she had a husband living, and neither of them were divorced, would that strengthen your opinion as to his sanity.”
It was “objected to as incompetent, and as not based upon the evidence in the case.” The objection was overruled, and the accused excepted. The witness answered that “it would.” Counsel for the accused denied that there was any such testimony in the record, and in his brief requested counsel for the state to point out such testimony, if there was any; but no attempt has been made to point out any such testimony, and after a good deal of examination we fail to find any. The record contains nearly 500 type-written pages of testimony. Tf there is any such testimony in the record, it was the duty
8. Error is assigned because numerous non-expert witnesses, who testified as to their acquaintance and dealing with the accused, mostly in buying meat from him at the shop, and seeing him at various times, were allowed to give their opinion, based upon such business relations with the accused and his appearance, as to his sanity or insanity. The admissibility of such testimony is fully sanctioned by numerous and recent decisions of this court. Burnham v. Mitchell, 34 Wis. 117, 133; Crawford v. Christian, 102 Wis. 51, 78 N. W. 406; In re Guardianship of Welch, 108 Wis. 387, 394, 84 N. W. 550; In re Butler's Will, 110 Wis. 70, 76, 77, 85 N. W. 678.
9. Error is assigned because the court charged the jury:
“If the jury believes from the evidence, beyond a reason••able doubt, that the defendant did shoot his wife and cut her throat as charged in the information, and that the natural, probable, and ordinary consequences of such acts would be the death of such wife, and that defendant was of sound mind at the time he committed these acts, then the presumption of law is that the defendant did so assault his said wife with intent to kill her; and if such assault and shooting, under these circumstances, was done with the premeditated design to effect the death of said wife, the defendant being sane at the time, the jury should find the defendant guilty, as charged.”
The particular criticism is that, by the instruction so given, the jury were told that the facts therein recited raised a “presumption of law” that the accused “did so assault his wife with intent to kill her.” Counsel concedes that a person of “sound mind is responsible for the consequences of his acts,” but insists that such acts “must be acts done — acts accom
“In criminal law, when a special intentj beyond the natural consequences of the thing done, is essential 'to the crime charged, such special intent must be pleaded, proved, and found.”
Ryan, C. J., there said:
“Surrounding circumstances generally go far to show” the intent. “Sometimes the very act itself does. Thus, if one shoot another with a rifle in a vital part of the body, the act raises a presumption of intent to kill, unless the circumstances under which it is done go to repel the presumption.”
In the Michigan case cited, it was held:
“When a statute makes an offense to consist of an act committed with a particular intent, which act and intent constitute, substantially, an attempt to commit a higher offense than that which was accomplished, proof of the particular intent is as necessary as of the act itself; but not, necessarily, by direct and positive testimony. It may be inferred from any facts in evidence which satisfy the jury of its existence.”
In that case it was said by the court:
“No intent in law, or mere legal presumption, differing from the intent in fact, can be allowed to supply the place of the latter.”
In Abbott’s Trial Brief, cited, it is said:
“The presumption of criminal intent, even where it has been shown that the act charged was done with the knowledge of the facts, is not a presumption of law, but is a question for the jury. It is error to instruct them that the law presumes a criminal intent. They may be instructed that from such facts they may infer criminal intent; but where a specific intent is necessary to make the act criminal, the specific intent cannot be inferred from the act.”
That is quite similar to Lawson’s rule 66, cited above, which is:
“Where a specific intent is required to make an act an offense, the doing of the act does not raise a presumption that it was done with the specific intent.”
But that rule is mentioned as an exception to the general rule, just previously stated, by the same author, as follows:
“Where an act is criminal per se, a criminal intent is presumed from the commission of the act.” Lawson, Presumptive Evidence, 327, Buie 65.
In support of that rule, the author cites a number of cases, including one from Massachusetts, from which he quotes at length, and where the opinion of the court was written by Shaw, C. J\, and in which it was held:
“When on the trial of an indictment for murder, the killing is proved to have been committed by the defendant, and nothing further is shown, the presumption of law is that it was malicious, and an act of murder, and proof of matter of*658 excuse and extenuation lies on the defendant.” Comm. v. York, 9 Met. 93, 102.
Tbe learned Chief Justice there said:
“Tbe effect of tbe rule presented to tbe jury was that, if it was proved beyond reasonable doubt that tbe defendant bad wilfully and voluntarily inflicted a mortal wonnd upon tbe deceased, malice was to be inferred from this act, unless such facts were proved, by a preponderance of tbe evidence, as would extenuate tbe homicide, and reduce it to manslaughter. This rule seems to rest on well-settled principles, and to be supported by a great weight of authorities.”
In speaking of what the “law presumes,” in the section of Wharton, cited, it is said, in effect, that “the use of the term daw’ is ambiguous, and is likely to mislead;” that “if it be said that the use of a weapon likely to inflict a mortal blow implies, as a presumption of law, in its technical sense, a deadly design^ this is error;” that “there is no such thing as a purely abstract killing;” but that, “when a person without authority, and with the appearance of deliberation, shoots another, we infer, as a presumption of fact (not- of law), design;” that “taking aim at another with a gun, by a person without authority, and not in public war, and then firing, ordinarily implies an intent to kill.” A standard text-writer uses this language:
“Another cardinal doctrine of criminal law, founded in natural justice, is that it is the intention with which an act was done which constitutes its criminality. The intent and the act must both concur to constitute the crime. . . . And the intent must therefore be proved, as well as the other material facts in the indictment. The proof may be either by evidence, direct or indirect, tending to establish the fact, or by inference of law from other facts proved; for though it is a maxim of law, as well as the dictate of charity, that every person is to be presumed innocent until he is proved to be guilty, yet it is a rule equally sound that every sane person must be supposed to intend that which is the ordinary and natural consequence of his own purposed act.” 3 Greenleaf, Ev. (15th ed.) § 13.
10. We perceive no error in charging tbe jury:
“Insanity means such a perverted and deranged condition of the mental and moral faculties as to render a person incapable of distinguishing between right and wrong, or not conscious at the time of the nature of the act which be is committing; and where, though conscious of it, and able to distinguish between right and wrong, and knowing that the act is wrong, yet bis will — by which is meant the governing power of bis mind — has been, otherwise than voluntarily, so completely destroyed that bis actions are not subject to it, but are beyond bis control.”
Such ruling has been expressly sanctioned by this court. Butler v. State, 102 Wis. 364, 366, 367, 78 N. W. 590; Eckert v. State, 114 Wis. 160, 163, 164, 89 N. W. 826. Nor do we think there was any error in charging tbe jury to tbe effect tbat we are not to infer tbat a man is insane from tbe mere fact of bis committing a crime, or from tbe enormity of the crime, or tbe absence of adequate motive. Nor was there any error in charging tbe jury:
“Moral or emotional insanity does not exempt a person from criminal responsibility. Mere moral insanity, or temporary frenzy or passion, arising from excitement or anger, and not from any mental disease, is not an excuse for crime.”
12. Error is assigned because the court refused to give each of the four instructions requested. But they are all substantially covered by the charge. There seems to be no other question of sufficient importance to call for consideration.
By the Court. — For the errors mentioned, the judgment of the circuit court is reversed, and the cause is remanded for a new trial upon both of the issues. The warden of the state prison will surrender the plaintiff in error to the sheriff of Clark county, who- will hold him in custody until he shall be discharged, or his custody changed by due course of law.