88 Kan. 136 | Kan. | 1912
The opinion of the court was delivered by
The appellant was convicted of murder in the second degree in killing Walter H. Newfarmer. The appellant was the manager of a farm owned by his father. He had employed the deceased and his wife to work upon the farm and lived with them.
From the testimony of Mrs. Newfarmer it appears that about five days before the homicide she had rebuked the appellant for an improper proposal and intimated that her husband could take everything he had from him for alienating her affections. This occurred on Wednesday. On the following Saturday the appel
She said that she had never spoken to her husband on the subject, and that all he wanted was what was coming to him, and said: “If you will be brave I will do all I can to help you out of your trouble and I will try and get Walter to.” He replied that he would try to patch it up with Walter and that he might come back to work in the morning. He appeared nervous and pale, said his trouble was weighing him down, and that he thought of doing something desperate. He folded and refolded his coat which was lying on the bed. The telephone bell rang and he said, “Don’t answer it. If that is the sheriff calling; don’t you dare tell him I am here.” • She told him it was her husband talking from Diamond Springs. He said “You have been good to me,” shook hands with her and went out of the house, after she had cautioned him not to get mad with Walter. In a few minutes she went to the yard for cobs and saw appellant going towards the toolhouse, when she heard a call.from her husband, such as he usually gave in returning from town. After
The appellant and Newfarmer rode to town and returned together on the Saturday when notice of the discharge was given. There was no evidence of any previous quarrel or misunderstanding. Evidence was offered of the good character of the appellant, who is an unmarried man, twenty-seven years of age. He was transacting ordinary business in town on Monday just before his interview with Mrs. Newfarmer on the day of the homicide. There was- evidence tending to show insanity of his mother, although it does not appear that she had ever been taken to an asylum. The deceased was twenty-three years old.
The material facts of the homicide were undisputed. The defense of insanity was interposed. In opening the case the appellant’s counsel stated that there would be but one question for the jury to determine, and thqt
It is contended that several jurymen were incompetent because they had formed opinions upon the issue to be tried. They stated that they had such opinions, but on further examination by the county attorney, and in answer to inquiries by the court, these opinions appeared to be limited to the fact of killing, which was undisputed, and would therefore not disqualify, or were only impressions from newspaper reports. They were not asked whether they had any opinion concerning the sanity of the appellant, which was the material question, nor was that matter suggested upon their examination. Some of the answers of jurymen appeared to be conflicting, those given in response to questions by the defendant tending to show settled opinions, while those given in answer to questions of the county attorney showing the contrary. Doubtless in this as in other qases the seeming inconsistency is due to the use of the terms opinions and impressions, and the variant senses in which they were understood. Within the rules stated in The State v. Morrison, 67 Kan. 144, 72 Pac. 554, The State v. Stewart, 85 Kan. 404, 116 Pac. 489, and The State v. Truskett, 85 Kan. 804, 118 Pac. 1047, the rulings complained of must be sustained.
The prosecuting attorney said in his opening argument :
“I suppose that the Captain will be telling you in a few minutes that he is not a murderer; he had that privilege. Maybe he can show you that he is not, but he can’t show it on the evidence in this case. . . . The witnesses who have testified to it in this case, I believe, knew that. But can it make any difference to this jury what his reputation had been heretofore, when he admits that he did this thing. If he had denied having—or if his counsel had denied”—
“That the testimony shows the killing t.o have been an insane act, a demoniacal one, without motive, purpose or accountability. There was but one eye witness, the wife of the man who was killed. Her story shows a maniacal act, devoid of any mental accountability.”
The remark objected to appears to have referred to the admissions of the appellant to witnesses that he had committed the act and to the statement of his counsel, rather than to his failure to testify, which the statute declares shall not be referred to. It is not believed that the appellant could be prejudiced by a reference to the fact that he had not denied the killing, the very circumstances of the killing being urged as an argument to show his insanity.
It is also argued that error was committed in an instruction which informed the jury in substance that they should not consider the fact that the defendant did not testify as a witness as raising any inference of his guilt. It is argued that this called attention to a matter which the jury had no right to consider. The fact, however, was already known to the jury, and the. caution was designed not to call attention to it but to warn them that the appellant must not be prej udiced by it. The court sought to give the appellant the benefit of the statutory safeguard and in doing so only declared the law.
Objection was also taken to the language of the county attorney in his opening argument, wherein the jury were told that they might protect the appellant “under the guise of a passing brain storm, . . . but he is a murderer.” The facts were stated which it was claimed proved the charge that he was a murderer and
A daughter of Newfarmer three years old was present when her father was being wounded with the corn knife and exclaimed as the tragedy proceeded, “Oh, poor papa, do die.” The admission of this statement is alleged as error. It was one of the circumstances attending the homicide related by the mother in her recital of the events. The remark was a mere incident of the tragedy. It is argued that the child was too young to be an intelligent factor, and that what she said was no more than the chirp of a swallow. Granting the truth of this observation no harm was done by the recital. It is said that this statement chilled the blood, but that was the natural effect of the whole dreadful story, regardless of accompanying exclamations, whether made intelligently or as childish prattle.
Requests were made for instructions to the effect that there was no charge of killing with a razor, and" if there was a reasonable doubt whether death resulted from wounds with that instrument there could be no conviction. Without-considering the question of supposed variance here suggested, it is sufficient to say that the man was alive when attacked with the corn knife. With the assistance of his wife he had walked several yards from the place of the first encounter, talking by the way. He exclaimed “Don’t, Don’t,” when the corn knife was upraised to strike, and he died while being furiously slashed by that instrument. Even if the previous wounds were mortal, of which there was no proof, death was hastened by the new assault, which is sufficient to sustain the charge. (2 Bishop’s
In support of the defense of insanity the defendant called several medical witnesses to whom a hypothetical question was put, eliciting an answer, based upon the truthfulness of the hypothesis, that the appellant was insane when the fatal act was done. Doctor Uhls, on cross-examination, said he presumed it to be emotional insanity—might be a species of moral insanity; that emotional insanity did not necessarily have to do with crime. “On facts stated in that question it would have to be under some distinct classification as to the kind of insanity he was laboring under; that is what is commonly referred to as emotional insanity; he acts on the impulse; it comes quickly and goes quickly, usually.” Doctor Smith said: “Would say emotional insanity, . . . similar to what we sometimes refer to as irresistible impulse. It comes quickly and recedes quickly.” He also said that he was considering the predisposing element of heredity from testimony he had heard. Doctor Crawford said:
“It is my opinion that he was suffering from emotional insanity. . . . There is an element of heredity in it; probably heredity may be a partial cause for the insanity. ... I didn’t answer it (the hypothetical question) either in the affirmative or negative; there are several things in there that makes me say that man was insane; his conduct at the time, during the day, prior to his having committed this offense and at the time of the commission of the offense; the fact of his being despondent, and wanting a shotgun, and looking for a shell to shoot a steer; the fact of his folding and refolding his coat would show he was in a nervous condition; don’t know whether it was same condition as of man wavering as to whether he would commit murder or not; his mind would be very materially disturbed and might develop into emotional insanity ; he would be in a condition of mind where emotional insanity might develop at any time if opportunity presented itself; -could n’t say it would recede as quickly*145 as it developed, but usually emotional insanity does n’t last a great while.”
Doctor Roby said in answering the question: “I think the man was very clearly insane.” On cross-examination, he testified that “based on that question this kind of insanity would be fairly termed emotional insanity, or impulsive insanity, or there may be several names applied to it; . . . insanity is not classified alike by all writers; it would be similar to what we call irresistible impulse . . . sometimes it is termed moral insanity.”
Doctor Packer answered the hypothetical question as follows:
“It is my opinion that from the time that the altercation took place to the time he was taken by Dr. Beam, he was violently insane, for some time before that time and for some time after, and he is still insane; I examined his mental condition yesterday; took very much time to it.”
On cross-examination the witness testified this was an outburst of passion, “as á result of melancholia; not exactly a brain storm, similar; not a case of paranoia exactly; one of the principal factors that leads me to believe he was insane at the time' was in that part of the transaction in which the struggle took place and they were separated and the attack was renewed; that was an insane motive; an insane act; it was without guidance, without thought, without direction; it was. abnormal, impulsive; it w;as acute rage; it was an extreme congestion of the cerebrum and the cerebellum, in which he had no control of his actions and no control of his thoughts; would n’t pretend to say how many kinds of insanity there are; there are very many. An insane condition is one in which the mental powers are not in normal balance; believe this is hereditary insanity; that element is embodied in the question.”
Doctors Roby and Packer testified -that they had ex
Ordinarily in determining the sanity of a person his mental condition before and for a reasonable time after-wards may be shown, as an aid to the jury in finding whether he was sane at the time when the act under consideration was done, and the evidence was admissible, the jury being instructed that from all the ¿vidence they must determine his mental condition at the time of the homicide. It does not follow, however, that'the judgment should be reversed because of this ruling. The opinions of the experts are in substantial harmony, to the effect that the insanity disclosed by the facts stated in the hypothetical question evinced emotional or moral insanity, or an irresistible impulse. One doctor, we have seen, refers to acute rage among the conditions of his mind.
It was said in The State v. Nixon, 32 Kan. 205, 4 Pac. 159:
“The law will hardly recognize the theory that any uncontrollable impulse may so take possession of a man’s fáculties and' powers as to compel him to do what he knows to be wrong and á crime, and- thereby relieve him from all criminal responsibility. Whenever a man understands the nature and character of an act, and knows that it is wrong, it would seem that he ought to be held legally responsible for the commission of it, if in fact he does commit it.” (p. 212.)
“We are not willing to change the ruling of this court in favor of irresponsibility on account of uncontrollable impulse, where the perpetrator is fully conscious that the act he is doing is wrong and criminal. If the law as declared by this court does not offer sufficient safeguards and protection for ‘that most unfortunate class, who can not speak for themselves,’ an act of the legislature may establish a different rule. Until the legislature interferes, we prefer to follow the great weight of authority upon this matter. We are not inclined to adopt the theories of psychological enthusiasts to overthrow the long-established criminal practice in this class of cases, which is based on human experience from earliest times.” (p. 681.)
No one testified that the defendant did not have the mental capacity to understand the nature and quality of the act or to know that it was wrong. His mental capacity at the time of the act being the material question, the state of his mind some time afterwards was not important unless it tended to show its condition at that time. It is said:
“But in order to ascertain a person’s mental condition at the time of the act in question, it is permissible to receive evidence of the condition of his mind for a reasonable period both before and after that time, especially where it is claimed that his disorder is of a continuing or permanent character.” (16 A. & E. Encycl. of L. 614.)
It does not appear to have been claimed that the alleged mental malady of the appellant was of a continuing or permanent character, and the medical testimony tended to prove that it was not.
In Moore v. Commonwealth, 92 Ky. 630, 18 S. W. 833, in reviewing a ruling rejecting evidence of the
“To sustain this defense (insanity)- the evidence must of course show the party to have been insane at the time of the doing of the forbidden act. It is of course not sufficient to show that he was insane before or after; but if there be testimony, as there was in this instance, tending to show that his affection is of continuing or permanent character, then it is competent to prove his mental condition after as well as before the time when-the act was done.” (p. 635.,)
While in the case last cited the conviction was reversed because of the rejection of the testimony offered, it will be seen that it was because there was testimony tending to show that the malady was of a- continuing character. No such evidence was given in this case. On the contrary it appeared from the medical testimony that whatever the disorder or affection of the mind was at the time of the fatal act it was of a temporary, sudden, or impulsive nature, variously characterized as moral, emotional, or irresistible impulse. It was said in French v. The State, 93 Wis. 325, 67 N. W. 706, “That the acts, conduct, or declaration must be so connected with, or related to, or result from, the mental condition of the accused at the time the offense was committed, as to throw light upon or illustrate ;such condition, and possess some material and practical probative force, and, when taken in connection with other evidence in the case, tend to show that the defendant was insane at the time of the homicide.” (p. 342.) In that case the inquiry related to the condition of the accused four days after the homicide, and its rejection was held erroneous. It was held in The State v. Newman, 57 Kan. 705, 47 Pac. 881, that where insanity is interposed as a defense testimony of the defendant’s state of mind shortly before and after the, homicide may be received as tending to show his mental condition at the time. If it is apparent in any case,
It is also argued that the evidence should have been received for another purpose, viz., to determine whether reasons existed for halting the trial and instituting proceedings to determine whether the appellant was then insane. (In re Wright, 74 Kan. 409, 89 Pac. 678.) This evidence was offered after the state had rested its case and a large majority of the defendant’s witnesses had given their testimony. At that stage of the trial it must be presumed- that counsel for the appellant had knowledge of the facts necessary to determine the nature of proceedings that should be taken on the part of appellant, and if an interruption of the trial to make an inquiry into his mental condition was deemed advisable they certainly would have taken some step, or made some request to that end. Nothing of the kind had been suggested before and no such suggestion was
The abstract does not contain the hypothetical question asked of the expert witnesses. Assuming, however, that it correctly stated facts which the evidence tended to prove, it is insisted by the state that it did not include other facts showing motive. In the parts given in the brief of the state no statement appears of the improper proposal of the appellant to Mrs. Newfarmer and his conduct with reference to it. This was a material matter, which might lead to an understanding of his motive and the state of his mind.
Other objections to rulings upon evidence do not appear to require comment.
It is argued that the savage ferocity of the act affords proof of insanity, but whether proceeding from madness or malice, whether from an irrational mind or a mind aflame with malevolence, were questions for the jury. If merciless cruelty in killing another should always be ascribed to insanity when no mental disorder had preceded, then the ferocity of its perpetration