Parrish v. State

139 Ala. 16 | Ala. | 1903

TYSON, J. —

The defendant was indicted for the murder of George S. Leonard, convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for ten years. On the trial he interposed two pleas, (1) not guilty, (2) the statutory plea of “not guilty by reason of insanity.”

The defendant offered no evidence to disprove the killing. Indeed, there appears to be no dispute as to the facts relating to the killing, and no justification or palliation offered except that tending to show the insanity of defendant.

As to his plea of insanity, there were a great number of witnesses examined by defendant and the State, both experts and non-experts. The evidence was in great conflict. More than a hundred exceptions were reserved by defendant to the rulings of the trial court. These exceptions are embraced in sixty-eight assignments of error.

The first four assignments are as to the voir dire examination of two jurors; the next fifty-seven go to the rulings of the trial court as to the evidence. The next goes to a remark of the court in the presence and hearing of the jury. The next three, 63, 64 and 65, go to the refusal by the court to exclude certain remarks of the solicitor made to the jury in his argument; the next, sixty-six, to several parts of the court’s charge to the jury. The next, 67, is to the court’s refusal to give each of fifty-five separate charges requested by refendant in writing. The last assignment, No. 68, goes to the refusal of the court to give or refuse additional written charges as requested by defendant when the jury returned into the court after they liad been considering the cáse for twenty-four hours and had failed to agree upon a verdict.

There was no error in the court’s refusing to propound any of the questions requested or desired as to either of the jurors, Riddle or Davis, nor declining to allow defendant’s counsel to propound the questions desired to be propounded to them. The court had examined each of said jurors on his Doir dire and had pronounced him competent. There was no challenge interposed as to either of them, and we see no reason for permitting any such speculative examination as was proposed in this case. If the question had been allowed and answered, the answers, if responsive, would not have shown Hie jurors subject to challenge for cause. — Hornsby’s case, 94 Ala. 55; Bale’s ease, 63 Ala. 38; Carr’s case, 104 Ala. 4; Hamlin’s case, 90 Ala. 577.

The question asked the witness, Thomas, “Did you hear any other conversation,” was properly allowed and the answer was admissible as evidence.

We see no possible valid objection to the questions propounded to, or answers thereto of, the witness, Harris. • 1-Iis statement including, the questions by Nix to defendant and defendant’s reply, involved the latter’s admission of the killing. The court very properly refused to allow the witness Harris to answer the question propounded to him, as to what it cost him to come from Memphis, or as to whether the witness himself paid his expenses. It was not proper to go into the details of such matters which could not be admissible for any purpose unless t.o impeach or "go to the credibility of the witness, to show bias or interest in the case. If intended for this purpose, the direct question should have been asked him, or some other evidence to show bias or interest such as to color his evidence. The mere fact that he knew a brother of the deceased was clearly not sufficient to show bias or interest in the case. There could be no error nor any prejudice to defendant to allow the solicitor to ask the witness, if he knew whether Leonard owned or clerked in the saloon, as to which counsel for defendant had first questioned him. — Carpenter v. State, 98 Ala. 33; Henry v. State, 79 Ala. 42.

There was no duty or propriety requiring the court to compel a witness to answer a question which the bill of exceptions shows he had already answered.

It would serve no good purpose to examine or discuss separately each objection, exception, or assignment of error as to the admissibility and relevancy of the evidence tending to prove or disprove the insanity of the defendant, and the form of questions to elicit such evidence. We will proceed to state the rules of law applicable to trials on the question of insanity, and to see if any- of these rules were violated or disregarded by the trial- court to the possible prejudice of defendant.

It is now well settled law and practice that as to the question of insanity, vel non, witnesses whether expert or non-expert may express their opinion as to the sanity or insanity of defendant on trial for crime. — Ford’s case, 16 Ala. 385; Burney v. Torrey, 100 Ala. 157; Norris’ case, 16 Ala. 776; Gaddell v. State, 129 Ala. 65; Fountain v. Brown, 38 Ala. 72; Powell v. State, 25 Ala. 21; Moore v. Spier, 80 Ala. 129; Florey v. Florey, 24 Ala. 241; Gunter v. State, 83 Ala. 96; Page v. State, 61 Ala. 16.

The witness, whether .expert or not, must first be shown to be competent or qualified to give an opinion as to the sanity or insanity of the party inquired of. The question as to the competency of the witness, whether expert or not, to give an opinion as to the sanity or insanity of the party inquired of, is a question for the court, and not for the jury. As to this question, its decision as to competency will not be revised unless it clearly appears to- have been erroneous. — People v. McCarthy, 115 Cal. 255; note on p. 733, 38 L. R. A.

An expert witness may give an opinion as to the sanity or insanity of an individual based solely upon a hypothetical question, without any personal knowledge or acquaintance with the individual inquired of. — Gunter v. State, 83 Ala. 96; Burt v. State, (Texas) 39 L. R. A. 305, (and note which cites the authorities).

A non-expert witness can not give an opinion as to the sanity or insanity, of the individual inquired of, based in whole or in part upon an abstract hypothetical question, but must base his opinion solely upon his own personal knowledge, observation, acquaintance, experience, etc., with the individual inquired of. — Roberts v. Trawick, 13 Ala. 68; Burney v. Torrey, 100 Ala. 157; Boling v. Boling, 8 Ala. 358.

Non-expert witnesses, to give an opinion as to insanity of a party, must first state the facts claimed to show or indicate an abnormal condition of the mind; but such witness may give an opinion that the person inquired of was sane, by first merely denying generally the existence of any facts showing an abnormal or unnatural state of mind, and without specifying any of such facts. Caddell v. State, 129 Ala. 65; Dominick v. Randolph, 124 Ala. 557; Parsons v. State, 81 Ala. 577.

The hypothetical question propounded to an expert witness, should embrace substantially all the facts where there is no dispute as to the facts upon the .question of insanity. — Davis v. State, 35 Ind. 496; s. c. 9 Am. Rep. 760; Webb v. tétate, 9 Texas App. 490; State v. Baber, 74 Mo. 292; 41 Am. Rep. 314; Goodwin v. State, 96 Ind. 554.

If the evidence is in conflict as to the facts tending to show insanity, the hypothetical question may and should properly embrace only the facts tending to support the particular theory of the respective party, and the opposing party, if desirable, on cross-examination of the witness, may propound questions to him embracing the facts which tend to support his theory. — Grubb v. State, 117 Ind. 277; People v. Hill, 116 Col. 562; State v. Baber, supra.

The hypothetical question to an expert witness should not contain matter as to which there is no evidence tending to support. However, technical accuracy is not required as to this. It is for the jury to scrutinize the evidence and to determine what part of the question is true or supported by the evidence and what is not, and the adverse party may aslc for instructions, that the jury do not accept the facts as true, but that they should determine whether such facts were in evidence, and that they might disregard the opinion of the expert if not based on facts in evidence. — Grand Lodge v. Wieting, 168 Ill. 408; Forsyth v. Doolittle, 120 U. S. 76; Goodwin v. State, supra.

Expert witnesses may be cross-examined and their opinion obtained based on other states of'facts, assumed by the party examining them to have been proven upon a hypothetical case; and they may be cross-examined on purely imaginary and abstract questions. Such questions are not only permissible in order to get the. opinion of the expert Ayitness upon all the possible theories of the case, but they are allowable also to test the value and accuracy of tbe opinion of the witness bimself. Clark v. State, 12 Ohio, 483; 40 Am. Dec. 481; People v. Sutton, 73 Cal. 243.

The opinions of expert witnesses as to insanity are not conclusive upon the jury; they are to be weighed like other evidence. Such evidence is intended to aid the jury, and its value depends largely upon the intelligence, experience, honesty and impartiality of the witnesses and their opportunity of knowing the traits and habits of the person whose mind is under investigation. Its weight is solely a question for the jury; they may reject it ail, though it is Avithout conflict. — McAllister v. State, 17 Ala. 434; Williams v. State, 50 Ark. 511; People v. Barberi, 47 N. Y. Supp. 168.

Applying these rules of la>v to the many objections and exceptions relating to the evidence of the expert and non-expert Avitnesses, the only possible objections of any merit Ave find Avere those interposed to hypothetical questions propounded by the State to Ur. Wyman. Those questions hypothesized, along Avith facts the opinion of an expert, and, therefore, the opinion expressed by Ur. Wyman may have been predicated not upon the facts hypothesized but upon the opinion expressed by expert Avitnesses.

It Avas possibly an error in the court in refusing to alloAv the Avitness Clayton to ansAArer whether or not he ever saAV the defendant Avhen he appeared to be in his right mind; but the error Avas cured by subsequently al-loAAdng the witness to ansAver this question, or to give his opinion as to the defendants insanity.

The court very propely refused to alloAv the defendant to proAre his insanity by reputation, notoriety or hearsay. Insanity cannot be piwen in this manner, consequently there is nothing in exceptions 17, 18, 19, 20, 31, 32 and 33. — Kimbrell v. State, 130 Ala. 40, 44; 16 Am. & Eng. Ency. of Law (2 ed.) 612, and note 7.

There Avas no error in the court’s refusal to1 lecture the solicitor for asking an improper question of the witness Martin, nor in declining to make an argument for the defendant upon the impropriety of the question. The court, however, properly sustained the defendant’s objection to the question; this was certainly all the defendant could ask, under the facts as shown by this bill of exceptions. — Downey v. State, 115 Ala. 108, 112.

The police officer was properly allowed to testify that the defendant “talked rationally.” Witnesses may always be allowed to testify as to the appearance and emotions of other persons. — Gardner v. State, 96 Ala. 12; Reeves v. State, 96 Ala. 33; Thornton v. State, 113 Ala. 43.

There was manifest error in the trial court refusing to allow the defendant to ask the witness Jones on cross-examination the following question: “Did you say to defendant’s brother, W. B. Parrish, this morning or yesterday, and in the hall in the court house, that all you had to say was that his brother, the defendant, was of unsound mind?” The ground of the State’s objection and presumably the one on which the court justified its ruling and action was, that the question showed a violation of the rule by defendant’s brother and the witness. The question did not show a violation of the rule, it merely called for an answer which might have shown its violation by the witness, which defendant had a right to show. And if shown it would have been discretionary with the court to alloAV the witness to testify at all. The witness having testified against the accused, he certainly had the right to lay the predicate to impeach him. The effect of the court’s action was to allow the State to introduce this witness and to allow him to testify in its behalf and to refuse to allow the defendant to impeach him by showing a contradictory statement, because it would show that the witness had violated the rule in making the contradictory statement. The defendant had a right to show both facts if he could. Certainly the defendant should not lose the right to impeach the witness because he had violated the rule, or because the defendant’s brother had violated the rule. If the defendant or his counsel had violated the rule, there would have been some ground for refusing him the right to impeach the witness, but certainly not where the State’s own witness and a third party are the violators. — 1 Greenleaf on Evidence, § 432. It is true the question was not answered, and it is not made to appear what the answer would have been, except from the question itself. But this is not necessary to constitute reversible error, if the question is sufficiently definite to show that the answer would be prima facie relevant, and it indicates the nature of the answer. It is only when the question is so general that an answer cannot be said to be prima faeie admissible, that a party is required to inform the court what is proposed to be proven, so that the court may see that the evidence he seeks to elicit is proper. The question in this case clearly showed that it was intended to elicit an answer admissible and relevant, as tending to impeach the evidence of the witness to whom it was propounded. This is as clearly shown by the question as if the answer had been stated to the court. — Phoenix Ins. Co. v. Moog, 78 Ala. 308; Fincher’s case, 58 Ala. 215.

The objections to the testimony of the witness Austin wore not well taken. The statements made by the defendant to this witness wore shown to have been voluntary, consequently were admissible as a declaration or confession against the defendant, and were admissible also upon the question of sanity, or the condition of the mind of defendant.

The objections to the statements of the witness that the defendant “seemed all right,” that “he talked rational,” etc., were properly overruled. Such expressions were admissible under the rules we have announced, and for the fulfiller reason that they were admissible to show the appearance, emotions and condition of the mind of the defendant. — Gardner v. State, 96 Ala. 12; Thornton v. State, 113 Ala. 43.

Justice Dowdell and the writer entertain the opinion that the court also erred in refusing to allow the defendant’s counsel, on cross-examination of the witness Dr. McAdory, to ask him the question, the substance of which was, would he say that a man with delirium tre-mens could choose between right and wrong? Under tbe rules of law and evidence as to proof of insanity by expert witnesses, this question, in our opinion, is allowable. The defendant was entitled to have the benefit of this question as to his sanity upon that hypothesis. There was evidence tending to show that he was in this condition at the time of the killing, and we think the question was properly propounded to an expert witness who is a physician, where the cause of insanity, as in this case, if it existed at all, was the result of alcoholism: The question, we think, was also permissible on cross-examination to test the qualification or competency of the witness to testify as an expert, and for the jury to consider in weighing his evidence as to what weight they would give it. — Clarke v. State, supra. However, the other members of the court do not concur in this view. The court further fell into error in making the remark, when he sustained the objection to this question, in the presence and hearing of the jury, “because delirium tremens of itself would not excuse a homicide even if the defendant could not choose between right and wrong.” If the proposition of law announced by the court had been correct and sound, the question was proper for the reason stated above. But the remark of the court was further objectionable in that it does not announce a correct proposition of law when applied to the evidence in this case. While delirium tremens itself is not necessarily a complete defense, or does not wholly excuse a person who commits a crime while in that condition, yet it may palliate or extenuate the crime and punishment, if the disease, drunkenness, or delirium tremens, has gone to such an extent as to deprive the person of the capacity to have entertained the intent necessary to constitute murder. Hence, voluntary drunkenness, though not carried to the extent of delirium tremens, may palliate a crime, if a necessary element of the crime is specific intent. In order to constitute murder in the first degree willfnllness, premeditation and deliberation must concur with malice, and if drunkennes or delirium tremens has gone to such an extent as to paralyze the mental faculties, and to render the accused incapable of forming a design, which is a necessary ingredient of the. crime, it would be a pertinent inquiry for the jury in determining the decree of the homicide and of the punishment to be inflicted. And there being some evidence that the accused was suffering from delirium, treme,ns at the time, he had a right to have the jury pass upon its credibility and sufficiency, and as to whether it was sufficient to prevent his being capable of forming an intent and of entertaining the necessary malice or intent to constitute murder. — Whitten v. State, 115 Ala. 72; Chatham v. State, 92 Ala. 47; King v. State, 90 Ala. 612.

Furthermore, on the tendencies of the evidence in this case, as shown by the record, it cannot he affirmed as a matter of law that delirium tremens, even if induced by voluntary drunkenness, would not support the defendant's plea of not guilty by reason of insanity. A person suffering under or afflicted with delirium tremens, for the time being, may be as absoulutely insane as an idiot or a maniac. Webster defines delirium tremens, as “a violent delirium induced by the excessive and prolonged use of intoxicating liquors” and gives as its synonyms, “insanity, frenzy, madness, derangement.” Judge Som-eeyillk in Gunter’s ease (83 Ala. 108), speaking of the definition of the word “insanity,” says that “It embraces every species of mental unsoundness, whatever may be its source or cause, and includes not only that derangement of the mind produced by disease of the brain, but is recognized by law as a defense to crime which is the sole product of it, but it also embraces * * * * that condition of subverted reason which may he produced by intoxication.” He further says that “Lord Coke in defining the four classes of persons non compos, embraces not only idiots and lunatics, and those who have lost their mind and memory by the visitation of God, but him also who has become such by his own act as a drunkard-It is true he also says, “that there is a suedes of insanity, or mental unsoundness manifested by a temporary depression or abberation of the mind, which sometimes accompanies or follows intoxication, and is often accompanied by delusions, hallucinations and illusions, This state of transient departure from reason is sometimes called a fit of mania, just as anger itself is often said to be a short madness, and these delusions are said to be insane delusions. But they are not such insanity as confers legal irresponsibility for crime.” He further says: “We do not mean to intimate that the disease of insanity, such as may exculpate from criminal responsibility,- may not result from habits of intoxication in the form of delirium tremens, mania a potu, or other like chronic disorders produced from an excessive and protracted use of alcoholic stimulants, which are not the immediate but the remote or secondary consequences of such indulgence.”

There was no error in the court’s refusal to exclude from the jury the reiharks of the solicitor in his closing-argument to the jury in which he said, “If he had been insane as they say, why had they not sent him to the asylum?” and the further remark, “Is there any evidence before you that any one had complained of his insanity?”

As to the objections and exceptions going to the rulings of the court'upon charges, we have carefully examined the general charge of the court which was in wrting, and also the given and refused charges. In them, we find no error of which the defendant can complain. The general charge, which was in writing, was a very clear and accurate exposition of the law as applicable to this case. There were fifty-five of the defendant’s requested charges refused, as to each of which error is assigned. A great number of these are palpably erroneous and are not insisted upon. Quite a number of others announce sound propositions of law when abstractly considered. But it would be a needless consumption of time to discuss each of these separately. We will simply announce a few principles of law and by the application of them it will readily be seen that each of them was properly refused.

Somerville, J., in the majority opinion in Parsons v. State, (81 Ala. 596), said: “The inquiries to be submitted to the jury, then, in every criminal trial where the defense of insanity is interposed, are these: First, Was the defendant at the time of the commission of the alleged crime, as a matter of fact, afflicted with a disease of the mind:, so as to be either idiotic, or otherwise insane? Second, If such be the case, did he know right from wrong as applied to the particular act in question? If he did not have such knowledge, he is not legally re-sposible. Third, If he did have such knowledge, he may nevertheless not be legally responsible if the two following conditions concur: (1). If by reason of the duress of such mental disease, he had so far lost the power to choose between the right and wrong, and to avoid doing the act in question, as that his free agency was at the time destroyed. (2). And if, at. the same time, the alleged crime was so connected with such mental disease, in the relation of cause and effect, as to have been the product of it solely ”

The defense of insanity under our statute must be specially pleaded, and evidence thereof is not admissible muler the general issue. The purpose of the statute has been said to be to separate as far as possible the two defenses of ‘‘not guilty” and ‘‘not guilty by reason of insanity,” and to have the proof directed to each of the two defenses, and the verdict to respond to each of such defenses. — Perry v. State, 87 Ala. 30; Maxwell v. State, 89 Ala. 150; Ward v. State, 96 Ala. 100; Martin’s case. 119 Ala. 1.

In the trial of a homicide case where the plea of “not guilty” and the statutory plea of “not guilty by reason of insanity” are both interposed, the burden of proof as to the first plea, is upon the State to satisfy the jury beyond a reasonable doubt of the guilt of the defendant; but as to the second plea, the burden of proof is upon the defendant to establish the plea of “not guilty by reason of insanity” to the reasonable satisfaction of the jury by a preponderance of the evidence, and a reasonable doubt is not sufficient to acquit the defendant under this plea. Hence, it will be seen that upon these two pleas and issues the burden of proof in the one case is upon the State, and in the other, upon the defendant. The weight and sufficiency of the evidence as to the one plea, is that the State must satisfy the jury beyond a reasonable doubt; whereas, as to the other, the defendant must reasonably satisfy the jury by a preponderance of the evidence. Consequently, charges which are applicable and proper in the trial of oue of these issues, would not be proper or applicable as to the other issue. So, too, the charges should be appropriate and should be limited in their operation and effect to the particular plea or issue to which they are directed. Though charges be correct and proper as to one issue if not as to the other, they should be refused.

Hence, charges in homicide cases, where these two pleas are interposed unless correct as to both issues should be limited to the issue as to which they are appropriate, and if they should have a tendency to mislead or to confuse the jury as to which of the two issues they were intended, when not applicable to both, they should be refused. — Parsons' case, supra; Maxwell's ease, supra.

Many of the charges would have, perhaps, been proper in the trial of a homicide had the only issue been that of “not guilty,’’ but these charges were clearly not proper or appropriate as to the statutory plea.

A party has no right to have charges repeated to the jury. Hence, it- is not error to refuse charges which, have already been given.

Trial courts are not required to give every charge to the jury which is shown to be technically correct. Charges should be gauged and interpreted in the light of the evidence, and if they ignore parts of the evidence, or single out particular facts or theories, and request verdicts based alone upon such facts or theories, they may be refused. — GrawfonV$ case, 112 Ala. 1.

The general affirmative charge is of doubtful propriety in criminal cases. Yet this court has, time and time again, held that where there is no evidence upon which a verdict of acquittal could be based, or where all the facts and evidence point to guilt, and where the evidence is uncontroverted and is of a conclusive character, the general affirmative charge may be given against the defendant in criminal cases. — Taylor v. State, 121 Ala. 24; Jones v. State, 96 Ala. 56.

As to the plea of “not guilty” in this case, the evidence was not in conflict, and there was no dispute as to any material part thereof, and under all the evidence which was undisputed, the jury could not have properly rendered a verdict for the defendant on it. Hence, the State would have been entitled to’ the affirmative charge with hypothesis. Consequently, it does affirmatively appear from the record, that if there was any error in refusing any charge under this plea, it was error without, injury, if it was not applicable or appropriate under the other plea.

It is- true that the doctrine of error without injury does not apply, unless it affirmative appears that no injury was or could be done the defendant by reason of such error; but as pointed out above, ivhen it is considered under the undisputed evidence in this case, which ivas clear and without conflict, that the verdict could not have been for defendant on his plea of “not guilty,” of course it affirmatively appears that the refusal of charges was without injury which predicated his acquittal under that issue. Yet, if it could be said, that some of the charges requested and refused, stated correct propositions of law, and would be applicable where the evidence was in conflict, and where the jury might or would be justified in finding for or against the defendant, of course, they would not be applicable or proper in a case like this, where the general affirmative charge could properly have been given- with hypothesis. Applying these rules of law to charges which were refused, we find no error of which the defendant can complain.

What we have said will be a sufficient guide upon another trial without a review of other questions presented by the record. For the errors pointed out, the judgment is reversed and the cause is remanded.

Reversed and remanded.