37 Neb. 481 | Neb. | 1893
Cuyler Shults was convicted in the district court of Hall' county, Nebraska, of the murder of J. P. Farr,-charged to have been committed in said county on the 28th day of August, 1891. There was no question that said Farr came to his death at the time and place charged from the effect of a gunshot wound inflicted upon him by said Shults. The defense was insanity, of which there was much evidence. It was shown that the accused was wounded in the right side of the head by a fragment of a shell on the 6th of April, 1862, at the battle of Shiloh; that since his discharge from the federal army the accused has become gradually morose, at times almost savage towards the members of his family; that he has become year by year quarrelsome at times and distrustful of his family and friends; that he frequently was cruel towards his cattle and horses; that
The state insisted that the above conduct of the accused was owing to a violent temper, often aggravated by intoxication, but that no insanity existed.
As the sole contention in this case was as to the sanity and ability of the accused to discriminate between right and wrong on the 28th day of August, 1891, we shall limit our observations to that and incidental inquiries, giving the testimony of the witnesses on rebuttal at considerable length. (To a proper understanding of this evidence
James McKnight .testified that he had known the accused about four years; lived within about a mile and a half of the place of residence of accused; was middling well acquainted with him; saw him pretty often but could not say just how often; sometimes once or twice a week, sometimes would not see him for a month, perhaps; saw him quite frequently during the summer previous to that in which the evidence was given, and saw him and talked with him on the 27th of August, 1891. That during, the time witness saw the accused he talked with him about as frequently as one neighbor would with another, but never had any business transactions with him. Had seen him drink in Grand Island, and once saw him under the influence of liquor when he was coming home from Grand Island, which was August 27, 1891. Following this testimony the witness was asked:
Q,. I will now repeat the question. You may state, Mr. McKnight, from your knowledge of Cuyler Shults, gained by your acquaintance with him as you have stated, whether in your opinion he was sane or insane on the 28th of August, 1891.
A. I would say he was as sane as any man as far as I could see.
On further examination this witness testified that he had never noticed any peculiar acts of insanity about the accused.
John Schwim testified that he resided at Doniphan, Nebraska, where he had lived for about six years; had met the accused in Mr. Wolbach’s store, where witness was book-keeper, about seven years before the date of the trial; since that would sometimes see him every week, and sometimes once a month; during the preceding spring, on account of accused’s sickness, he had not seen him during a
Q,. Now, from what he appeared to you on the 28th day of August, and from what you have known of him during all the time during the last seven years, in your judgment or opinion, was the man sane or insane on the 28 th day of August, 1891?
Objection duly made, overruled, and exception taken. -
The court remarked: “I think he may answer now; it is pretty close, though.” Whereupon witness answered: .
A. I cannot form an idea if he had been sane or ipsane. Mr. Shults was eccentric. I cannot draw the line between insanity and eccentricity; I am no expert.
Q,. What does his eccentricity consist of, Mr. Schwim?
• A. Well, first, he had a mania for lying.
Q,. What else, if anything?
A. And telling stories in general.
A. Oh, he had — I don’t think he ever liked to work very much; he wanted to go fishing and hunting; it was one of his passions.
Q,. That was one of his eccentricities, was it?
A. Well, it was more of a passion, I should think, and. lying I should class as an eccentricity. A man may have a passion for lying the same as he may have for stealing or kleptomania. I don’t know as there is any man that has the habit of lying when it don’t do any good.
Q,. From your knowledge of this man during these seven years, and the many times you have met him and talked with him, with all of his eccentricities, taking them all together, what, in your opinion, was the man’s ability to judge between right and wrong in this particular crime committed'on the 28th of August, 1891?
Due objection was made, overruled, and exception taken. Witness answered:
A. I think when — of course I don’t know what state his mind was in at that time — the day he committed the crime, but from the appearance he gave me the last few times I think he could distinguish between right and wrong.
Mr. Henry Denman testified on rebuttal that he lived eleven miles southwest of Grand Island at the time of testifying, where he had lived over twenty-two years; had. known Cuyler Shults between twelve and fifteen years, and during the time of his acquaintance with Shults had seen him two or three times a week, sometimes might be a month, probably not more than once or twice a month, and again witness might not see him for two months. During the time of his acquaintance with the accused witness had held the office of sheriff and jailer of the county for two years; had seen the accused in the jail perhaps three or four times during those two years, which were 1882 and 1883. Since the last date above given witness had lived on his farm in the neighborhood of two and
Premised with this testimony, the following questions and answers appear in the record:
Q. Now, Mr. Denman, from your knowledge of him as you have stated, was he in your opinion sane or insane in August, 1891?
Upon the suggestion of the court that the question be confined to the acquaintance of the witness with the accused, the question was put in the following form:
Due objections were made, overruled, and exceptions taken.
A. My opinion is he was sane.
Q. From your knowledge and acquaintance with him during the time you speak of did he, in your opinion, know the difference between right and wrong?
A. Yes, sir.
Q. From your knowledge of him during the time you have known him, could he in your opinion, distinguish the difference between right and wrong in the' particular act charged in this information, namely, theddlling of J. P. Farr on the 28th of August, 1891?
Due objections were made to this proposed evidence, which were overruled, to which the defendant excepted.
Witness answered:
A. Yes, sir.
John W. Denman testified to an acquaintance with the accused and opportunities of observing his conduct, much to the same effect as detailed in the evidence of the last witness. He said that he saw the accused on the 27th day" of August, 1891, going to Grand Island about 11 o’clock in the forenoon, when he had some talk with the accused, who told him about his trouble with Mr. Farr; that he saw the accused the same day about sunset; that at the last named time the accused was under the influence of liquor; saw him the next day after the homicide, when the accused said to him good bye; that accused never expected to see witness again; that witness remarked to him- that he (Shults) would get into the “jug” over to Grand Island» No further conversation was had at that time; that during the witness’s acquaintance with the accused he lived within about three miles of him.
After this preliminary testimony the witness was asked the following question:
After the overruling of objection and taking of exception witness answered:
A. Well, I should judge he was able to judge between right and wrong.
John Gallagher testified that at the time of giving his testimony witness lived seven and a half miles south of Grand Island, where he had lived for about a year; previous to that time he had lived one mile north of Doniphan and a mile east for four years; prior to that time he had lived six miles east of Doniphan, or rather five .miles east of Doniphan and one mile south. He detailed about the same means of observation, and the same intimacy of acquaintance as has been stated by the two witnesses whose evidence immediately precedes that, of this witness. Witness further stated he had always considered the conversation of the accused just as rational as his own; never saw him take a drink of liquor in his life; every time witness met the accused coming from toward Grand Island accused seemed to be intoxicated ;• at such times he talked just as any other man would when the worse for liquor; sometimes he would be drunk almost and lying in the bottom of the wagon, letting his horses proceed homeward without any restraint at all; had seen the accused under the influence of liquor in Grand Island; noticed no. difference in him when intoxicated in appearance from the appearance of other men when intoxicated; sometimes under-such circumstances he was profane and abusive; sometimes, whether intoxicated or not, he was angry and excited ; one time in 1889, while surveying, noticed. such conduct of the accused when he was sober, the defendant then accused witness of bringing Mr. Shaw, “the damn big Scotchman,’®
To this there was proper objection, which was overruled and exception taken.
The witness answered: “ I always thought he was a sane man.”
Zenas H. Denman testified to facts showing about the same means of observation and acquaintance with the accused as has been stated in the testimony of the three last named witnesses. The witness further stated that the last time he saw the accused was about five or six weeks prior to the homicide, that is the last time he had a talk with him. He was then asked this question :
Q. Mr. Denman, from your acquaintance with him, as you have detailed, did he, in your opinion, know the difference between right and wrong as to the killing of J. P. Farr on August 28th, 1891?
He answered:
A. From the last talk I had with him, I think it was about six weeks prior to the shooting, I should say he would know right from wrong.
Dr. Sutherland testified as to the indications of certain phenomena respecting the accused which had been detailed by the other witnesses.
John Allan testified that he was clerk of the district court of Hall county, and ex-qffido clerk of the board of commissioners of insanity; that defendant Shults was before the board on the charge of insanity on July 22 or 23, 1891; that he attended the inquisition held as to the alleged insanity of defendant Shults; that witness talked with accused about his condition and that accused said if lie was insane then he always had been; claimed that his family was plotting against him; that he had had trouble with Yonker; also with his own son John; that accused's
Q. Now, from your acquaintance with him as you have detailed, was he in your opinion sane or insane during the time you knew him?
A. Sane, but not very well balanced.
He was then asked :
Q,. Mr. Allan, from your acquaintance with him as you have testified, did he in your opinion know the difference between right and wrong on the 28th of August, 1891, when he killed J. P. Farr ?
Upon proper objection being overruled and exception taken, the witness answered:
A. I think he did, he seemed to know the penalty of the crime he had committed.
Mr. Glanville, another member of the board of commissioners of insanity, testified substantially as above in respect to the proceedings had on July 22 or 23, 1891. He was not asked his opinion as to the sanity or insanity of the accused, or his ability to discriminate between right and wrong.
George Grantham testified that he lived three and a half miles south of Doniphan; had known the accused for twenty years; first knew him in Butler county, Nebraska, where he lived in the same house with witness; might have been for four or five months; during that time he appeared all right; in speaking, his manner was very quick, spoke quicker than some people do; did not drink much then as he has lately, because he was poor at that time; would get mad very quick; after he left Butler county witness next saw him at Doniphan, Nebraska, about twelve years before the date of the trial, when he was living on a farm on the Platte river; witness and the accused had had a little trouble in Butler county, and' the accused wanted to make it up with the witness every time they met, and especially when the accused had had liquor; at such times the accused terribly wanted to get into conversation with witness and make it up, and said that if witness would' come down home with him accused’s wife would make witness some
Q,. Now, Mr. Grantham, from your acquaintance from the time you first met him in Butler county, was he in your opinion sane or insane during the time you have known him up to the 28th of August, 1891?
Objection was duly made to this question, which was overruled, and exception taken. Witness then answered:
A. Well, sir, I should say he was a sane man, sir.
Witness was then asked this question :
■Q. From what you know of him from the time you first knew him in Butler county up to the 28th day of August, 1891, did he, in your opinion, know the difference between right and wrong as to the killing of J. P. Farr on August 28th, 1891 ?
After the overruling of due objection to this question, to which exception was taken, the following answer was made by the witness:
A. I should judge he did know right from wrong.
It will scarcely escape observation that all the preliminary inquiries made were introductory to two questions: First, whether the accused was sane or insane, in some instances on the day of the homicide, in others during the acquaintance of the witness with the accused; second, whether on the day of the homicide the accused could judge between right and wrong in respect thereto. This
In Polin v. State, 14 Neb., on page 546, is found the following language: “Non-expert testimony on the question of the prisoner’s alleged insanity was admissible. The witnesses had known the prisoner for years; were more or less intimately acquainted with his habits and practices, and formed their opinions from facts within their own knowledge. Their testimony was clearly within the rule announced in the case of Schlencker v. State, 9 Neb., 241.”
In Burgo v. State, 26 Neb., on page 643, this court said: “It is probable that there is no better proof of the sanity or insanity of a person than the testimony of those who
The inquiry as to sanity or insanity is as to a fact, “and the expressed opinion of one who has had adequate opportunities to observe his conduct and appearance is but the statement of a fact; not indeed a fact established by direct and positive proof, because in most if not all cases it is impossible to determine with absolute certainty the precise mental condition of another, yet being founded on actual observation, and being consistent with common experience and the ordinary manifestations of the condition of the mind, it is knowledge, so far as the human intellect can acquire knowledge upon such subjects.” (Connecticut Mutual Life Ins. Co. v. Lathrop, 111 U. S. Rep., 620.)
To testify as above indicated, it should be affirmatively shown that the non-expert witness has had sufficient acquaintance and means of observation to testify as to sanity or insanity as to any other physical fact. In support of the ruling of the court in excluding the opinion of Campbell, a witness of the class now under consideration, counsel for the defendant in error in their brief use the following apposite language:' “The doctrine is well settled, in accordance with the current of authority, that the witness who is not a medical expert, may, in certain cases where the question of insanity is raised, and the state of mind of a person is the subject of investigation, state his opinion, but to warrant this being done, and such opinion being received in evidence, it must first be shown that the acquaintance of the witness with the party, whose sanity is questioned, is of an intimate character and his associations with him of sufficient duration to justify him in forming a correct judgment as to the intellectual status of the person whose sanity is under investigation.” This rule properly excluded the testimony of Campbell, and with the same effect should have been interposed against the evidence of some of the witnesses on rebuttal, notably that of George
There is, however, a more radical objection to the testimony given by these witnesses in rebuttal than has been yet made, though it lies in the general course of former observations. After having shown opportunities for observation of the accused from twice a week to once in two or three months — in one instance at least, being no nearer than six weeks to the date of the homicide, witnesses were asked whether in their opinion the accused knew the difference between right and wrong on August 28, 1891, as to the killing of J. P. Farr. The evidence of these witnesses as to the sane or insane condition of the prisoner was tolerable, only because they testified as to the existence of sanity or insanity as a fact. "What deduction was to be drawn from that fact was solely a question for the consideration of, and determination by, the jury. The contest was not as to the fact of the homicide, but was as to the legal responsibility of the accused for its commission. The court properly instructed the jury that if the accused at
The judgment of the district court is
Reversed.