92 Mo. 300 | Mo. | 1887
On the evening of November 12, 1885, in the city of St. Louis, Jerry Pagels, the defendant, with a double-barreled shot-gun, shot and killed Samuel Kohn. He was indicted for the crime at the January term, 1886. Was arraigned and pleaded not guilty, March 22, 1886. At the May term following, the cause was continued, and at the same term, June 7, on
I. The application for a continuance was properly denied. The defendant’s affidavit therefor disclosed neither relevancy nor diligence. The witnesses resided in Illinois, who were relied on to prove the insanity of the defendant’s blood cousin, Frederick Just, who, it seems, had been confined at various times in asylums for the insane, at Jacksonville and Anna, Illinois, and that the insanity of said Just was “hereditarily transmitted from the paternal ancestors.” Of the fact of ancestral insanity the defendant could not well have been ignorant, and as he states he was acquainted with the witnesses, their condition in life, and places of residence, it is inconceivable that before December 8, 1886, he was not aware that those witnesses knew the facts already mentioned. But waiving that view of the matter, and treating the affidavit as true according to the usual rule, it does not appear that the “paternal
As the affidavit of the defendant did not comply with legal requirements, the affidavits of his counsel could add to- it no strength. Besides, those affidavits disclose no diligence. Over six months had elapsed between the time of the appointment of the counsel and the occurrence of the trial, and during that time they did nothing, so far as appears, in ascertaining what the line of defence would be, and making preparations therefor; and they certainly had no right to rely on the statements of the circuit attorney, or the clerk of the criminal court, as to when the case of the defendant would be docketed or called for trial. And the refusal of the continuance involved no denial of a constitutional right. The right to compulsory process for witnesses does not, and cannot, extend to non-resident witnesses. State v. Butler, 67 Mo. 59.
II; -Was Lang competent to serve as a juror? He
III. It belongs alone to the judge of the criminal court to say whether the official stenographer “shall attend upon said court” in any given cause; and his action, whether reasonable or otherwise (in this instance it appears to have been reasonable), is not the subject of review here, and certainly furnishes no ground for a reversal of the judgment.
IY. The fact of the killing of Kohn by the defendant was abundantly established by the evidence, as well as by the admissions of the defendant. Indeed, he plea of insanity is itself, and of necessity, a plea in the nature of a plea of confession and avoidance, the courts differing as to the quantum of evidence to sustain such a plea. 1 Wharfc. Crim. Law [9 Ed.] sec. 61. Such plea is but a bare denial of a part of the government’s case; it admits the act charged, but avers that there was no criminal intent accompanying the act, and, therefore, denies the crime charged. 2 Bish. Crim. Proc. [3 Ed.] sec. 669. This being the case, it is wholly
V. Under the provisions of section 1802, it was competent for Officer Emmett to testify on behalf of the state, though his name was not endorsed on the indictment. State v. Roy, 83 Mo. 268; State v. Griffin, 87 Mo. 608; State v. O'Day, 89 Mo. 561.
VI. In order for the introduction, as evidence, of certified copies of the records of the hospitals for the insane at Anna and Jacksonville, Illinois, it was necessary, under the terms of section 2285, to show that such institutions were “public offices of a sister state.” Under section 2272, the printed statute book of Illinois was competent evidence to show what the statutes of that state were, and thus lay the basis for introducing the evidence desired; and error occurred in rejecting that book. There was, however, no exception saved to the ruling of the court, rejecting the statutes of Illinois when offered in evidence for that purpose, and without those statutes, the certified copies aforesaid were worthless. Relative to what is termed the certificate of Thos. Cleary, superintendent of the poor house of the city of St. Louis, it suffices to say that it does not fall within the provisions of section 2285, since it is neither a record nor exemplication of office books kept in any public office of the United States, nor of a sister state; in form it is but a, primate letter from the superintendent in relation to J. P. Pagels having been confined there as an insane patient.
VII. There can be no doubt of the right of a trial judge to interrogate a witness if he deems it necessary to supply some omitted and legitimate question, or to fully develop the facts bearing on the case. Whart. Crim. Evid., sec. 452, and cas. cit. In the present instance the questions propounded to Drs. Lutz and
VIII. The concluding remarks of the circuit attorney were not based on the evidence of Dr. Bauduy, were a misrepresentation of that evidence, and his attention had been thrice called to the misstatement of the testimony which he had made. It is true that the trial judge, on objection made by defendant’s counsel, indirectly administered a rebuke by causing the stenographer to read Dr. Bauduy’s answer to the question propounded by the court; but it would have been better if such conduct had received pointed rebuke. Prosecuting officers, even in the heat of debate, ought not to forget that they owe a duty to the defendant as well as to the state: to the state, to fairly prosecute and to endeavor to secure conviction by all proper methods and legitimate modes; to the defendant, to refrain from doing or saying aught which the highest sense of professional honor will not sanction. But, notwithstanding these observations, observations not infrequently made heretofore (State v. Leabo, 89 Mo. 247; State v. Barham, 82 Mo. 67), inasmuch as no exception was saved to the objectionable remarks, we say no more on the point, by no means intimating, however, that it would have been reversible error even if exception had been saved.
IX. As. some of the instructions are now to be examined, it becomes appropriate to give a resume of the evidence in the causeare and con., so that the propriety of those instructions can be the better understood. For some months prior to the killing, Kohn and the defendant had been buyers, respectively, for different hide houses in the city of St. Louis, and there had grown up between them quite a brisk business rivalry. In connection with this, one witness speaks of the defendant using, on one occasion, an expression of strong and contemptuous dislike for Kohn, the deceased. On the evening of the homicide, and after it had become quite
In support of the defence of insanity, it was shown that defendant’s father had always been sober and industrious, until he attained the age of sixty-four, when he suddenly became addicted to excessive drink, which habit he continued for about one year, when he stopped it, altogether; and, at this time, marked peculiarities began to be noticed in his conduct, such as delusions and hallucinations. This continued, with gradual augmentation, till he finally was placed in an asylum for the insane, at the age of sixty-eight, where his malady was pronounced hopeless, in which condition he died, at the age. of seventy. Defendant’s mother was of a very nervous, excitable temperament, and was stricken with paralysis, in which condition she languished for two years, when she died. The defendant’s brother committed suicide, at the age of nineteen, while in good physical health, and while his wants were all provided for. For the last fifteen years, the defendant, himself, had been addicted to excessive drink, several times having had delirium tremens, and, about seven years ago, he became infected with syphilis, and, several years ago, he received a blow on the head, which has since left a deep depression in the skull, and, for the last several years, marked peculiarities have been noticed in his conduct, such as acting, at times, under apparently incontinent impulses — on one
That portion of the instruction to which objection is made, is as follows : “In this case, insanity is interposed by defendant’s counsel as an excuse for the charge set forth in the indictment.
“This defence, when established, is one the law recognizes, and should insanity be proved by the evidence in this case, to the reasonable satisfaction of the jury, it would be the duty of the 'jury, in that event, to acquit the defendant, altogether.
“Insanity is a physical disease located in the brain, which disease so perverts and deranges one or more of the mental and moral faculties as to render the person suffering from this affliction incapable of distinguishing right from wrong, in reference to the particular act charged against him, and incapable of understanding that the particular act in question was a violation of the laws of God, and of society.
“Wherefore, the court instructs the jury that if they believe and find, from the evidence, that, at the time he did the killing charged in the indictment, the defendant was so perverted and deranged, in one or more of his mental and moral faculties, as to be incapable of understanding, at the moment Ire killed Samuel Kohn, that
“ Insanity is either partial or general.
“ General alienation always excuses.
‘£ Partial insanity does not always excuse. One may be partially insane, and yet be responsible for his criminal acts.
“The law does not excuse, unless the derangement is so great that it actually renders the person incapable,, at the time of its commission, of distinguishing between right and wrong, in respect to the particular act charged and proved against him.
“The law presumes every person, who has reached the years of discretion, to be of sound mind, and this presumption continues, until the contrary is shown. So that when, as in this case, insanity is pleaded, as a defence to a criminal charge, the fact of the existence of such insanity, at the time of the commission of the act complained of, must, before you can acquit on that ground, be established by the evidence, to your reasonable satisfaction, and the burden of proving this fact rests with the defendant.
“To establish the insanity of the defendant, posi tive and direct proof of it is not required. To entitle him to an acquittal, by reason of his insanity, circumstantial evidence, which reasonably satisfies your minds of its existence, is sufficient.
“The law presumes the defendant innocent, and the . burden of proving him guilty rests with the state, and, before you should convict him, his guilt must be established beyond a reasonable doubt. On the other hand, to entitle the defendant to a verdict of not guilty, by reason of his insanity, the law requires him to prove it, not, however, beyond a reasonable doubt, but only to your reasonable satisfaction.
“The jury are the sole judges of the credibility of the witnesses, and the weight to be given to their testimony. If you believe that any witness has knowingly sworn falsely to any material facts, you are at liberty to reject all, or any portion, of such witness’ testimony. This is applicable alike to the medical expert testimony, as to the testimony of the ordinary witnesses.
“Whether the hypothetical case, on which the opinions of the expert are based, corresponds to and coincides with the case of the defendant, the jury, alone, must determine in the light of the testimony presented on this trial. And whenever it supposes facts not given in evidence, it should be disregarded by the jury.
“ The previous good character of the defendant, if proved to your reasonable satisfaction, is a fact in the case which you ought to consider in passing upon the question of his guilt, or innocence, of this charge.
“ But if all the evidence in the cause, including that which has been given, touching the previous good character of defendant, shows him guilty of the charge, then his previous good character cannot justify, excuse, palliate, or mitigate the offence.
“ The court instructs you that if you find the defendant not guilty, on the ground that he was insane at the time of the commission of the homicide charged, you will so state in your verdict, and you will also state whether defendant has entirely and permanently recovered from such insanity.
The court refused to give, at defendant’s instance, this instruction:
“ The court instructs the jury that if they believe and find, from the evidence, that, in the commission of the deed with which he stands charged, the defendant obeyed an uncontrollable impulse, springing from an insane delusion, they will find him not guilty.”
Of the instructions given the jury, it is unnecessary to say more than that they express, in an exceedingly happy and lucid manner, the well-established law of this: court, as shown by the instances from our own reports, cited by counsel for the state. The approval of the instructions given necessarily approves the refusal of the instruction refused. It will be a sad day for this state,, when uncontrollable impulse shall dictatea rule of action” to our courts. There are disclosed by the evidence in this case so many indications of intelligent purpose, premeditated design, a sense of guilt, desire- and intention to escape punishment, as would have made it a marvel had the jury found otherwise than as they did. And in relation to experts, and the value of their testimony in regard to the- questions of insanity and criminal responsibility, it is well enough to refer to the following authorities: Whart. Crim. Evid. [9 Ed.] sec. 420, and cas cit.; Lawson’s Expert Evid., p. 240, rule44.
Finding no error in the record, we aflirm the judgment, and direct the sentence pronounced to be executed. R. S., sec. 1994.