161 Mo. 152 | Mo. | 1901
This prosecution was instituted in Callaway county, because defendant, 20 years old, on the twenty-third day of April, 1899, at his mother’s house in Fulton, shot and killed Thomas Oannaway, aged about 19 years, with a revolver. There were two mortal wounds inflicted by the shooting; one on the right side of the windpipe, the neck being
An indictment for murder in the first degree was returned by the grand jury on the tenth of May next following the homicidal act, and on trial defendant was found guilty of murder in the second degree, punishment being assessed at ten years in the penitentiary; hence this appeal.
The first question to be determined is the one relative to the denial of defendant’s application for a continuance, which was sworn to by defendant.
The denial of this application can -not be considered, because not embodied in the bill of exceptions. [State v. Griffin, 98 Mo. 612, and subsequent cases.] And although the record recites that on the denial of his application defendant excepted, yet this recital cuts no figure, because matters of exception, such as this, can only be preserved in a bill of exceptions, the sole repository known to the law for the preservation of such matters. [State v. Wear, 145 Mo. loc. cit. 204, 205 and cas. cit.] The recital by the clerk in the record has no such preservative power. [Ib.]
This brings into view the merits of the cause. The plea of not guilty was entered in usual form, and in its support testimony was introduced tending to show such a degree of imbecility of mind on part of defendant as rendered him irresponsible for the act done, and there was testimony of a contrary effect. And on this question of imbecility of the sort mentioned, the decision of this cause hinges and turns. Testimony on this subject was introduced, both pro and con. Charles Mortz testified as follows: I reside in Fulton. I am twenty-two years old. I knew Thomas Gannaway in his life
Another witness also testified that some one said “Come in” as Tom Gannaway knocked at the door.
M. S. Roberts testified as follows: On the twenty-third day of last April, T was living on Eonrth street, east of Market street in Enlton. I knew Mrs. Palmer, the mother of defendant at the time. She was living on the south side of Fourth street, right opposite the house I was living in. I was at home on that day. About one o’clock or a few minutes past one, while I was in the yard, I heard three shots fired pretty close together. I went in the house, through the school room, and then through the hall to the front door, and when I got to the front door, I saw Tom Gannaway coming out from the east side of the Palmer house, and he came to the gate at the east corner which comes out on the street, and as he came out the gate, he stumbled and the blood was coming out of his mouth and nose and when he stumbled he threw up his head. I was in the door then and hé came across the street to me, and he said, “Bug, go for a doctor.” I said, “My God, Crup, what’s the matter ?” He kept coming towards me and was about to fall and I started to him, but he fell before I got there. He fell in about two feet of me. He didn’t live more than two and a half minutes after I got back from going up the street after a doctor.' I was not gone more than two or three minutes ; when I got back he was lying just where he was when I left him. He didn’t live over four minutes, if that long, from the time he fell until he died. There was one shot in the throat and the bullet went through the necktie and the collar. There was another wound under his left shoulder blade and his throat and chin were powder-burned. The wadding of his coat was burned where the bullet went through.
Herman Dories testified: I was living in Eulton on the twenty-third day of April last. I lived right across the street from Mrs. Palmer, the mother of the defendant. I was at home about one o’clock on the twenty-third day of April, 1899. I heard three pistol shots fired between five and ten minutes after one o’clock — sounded like they came from across the street. They were close together like as if you would pull one off and then another right away. When I heard the shots, I went to the front window, and I saw Tom Gannaway run out of the east gate of Mrs. Palmer’s yard. At the gate when I first saw him he was running- pretty fast, but after he struck the corner he got more and more into a walk and after he got across the street he fell in the street. I run out to him but he fell before I got there. I raised his head up and asked him who did the shooting, and he said, “Ed. Palmer shot me.” I asked kim'what he was doing back there, and he said “Nothing” and I never asked him any more questions. I saw both the wounds after I turned him over, one at the shoulder and one at the neck. They were pistol shot wounds and the one on his neck was burned. He was bleeding at the mouth. He lived three or four minutes after he fell in the street.
J. W. Garner testified: I am constable of this township, and deputy sheriff of Callaway county. I live in Eulton. I do not remember the day of the month that Gannaway was killed, but it was on Sunday. When the shooting- occurred I was near McOue & Grant’s grocery store. I heard .the shooting. I walked up this way (indicating) and met Mr. Roberts
J. H. Buchanan testified: I am sheriff of Callaway county; was sheriff on the twenty-third of last April. I remember the occasion of E’d. Palmer shooting Tom Gannaway here in Eulton; that was on the twenty-third day of last April. I was at home. It was about one o’clock, just after dinner. Defendant’s mother lived around the corner in the same block where I-live — not over one hundred and fifty yards away, I should think. I heard two or three shots fired about one o’clock of that day. I went out to see what was the trouble, and I saw the people running up that way, and I went up there, too, as quick as I could to see what had occurred. I saw Mr. Gannaway lying’ out on the street over there in front of Mr. Dories’ house, close to the north side of the street. They were holding his head up and he was bleeding some from the mouth and
Carner asked defendant where his pistol was that he did the shooting with, and defendant said it was at the house; then witness went to the house and asked Mrs. Palmer for it, and she handed it to him out of the cupboard or press. Garner also stated that defendant was not at all excited; that he was laughing when he first saw him out there in the street; that you could not have told by his looks that defendant had done the shooting; “he looked more like he had done something smart, than that he had committed a crime.” Other witnesses also testified that defendant was not excited; that Gannaway’s body was searched and no weapons found upon it, and that the two wounds inflicted on Gannaway’s body were mortal.
In the above extracts are given the substance of the testimony on behalf of the State, omitting the testimony of some witnesses not important, and in this summary is included the main portions of the testimony of every witness present when the shooting occurred.
On part of defendant there was testimony introduced to the following substance and effect: Sam Lee, an uncle by marriage of defendant, testified: • I reside about a mile and a half west of town. I married Miss Landis. I know Mrs. Palmer, the mother of the defendant; have known her since 1865. I know the defendant; have known him all his life. I do not think his mental condition is good: As to my opportunity of knowing his mental condition, I will state that I first knew him when he was three weeks old and his father left the place where he was living and where the boy was bom and moved to Kansas. I didn’t see him after he moved away until he was about ten years old. He moved to Kansas in 1818 and came back in 1888. He stayed at my house three weeks after he
Sam Lee, Jr., testified: I live about a mile and a half west of town. I knew the defendant, he is not very bright. I have known him about ten years. I have seen him often and been with him often. Erom my conversations with him and from my general knowledge of him and his mental condition, I will say that he is not able to take care of himself. He has not good sense. I always had to watch him when I was with him. I was not with him on the twenty-third of last April. I know his mother, and have talked with her; have known her about ten or eleven years. She can remember things but she don’t know half the time what she is talking about. She was about like Ed., I think. I can not see much difference between
On cross-examination, witness testified as follows: I think the defendant is an idiot, but he has never been confined in an asylum for feeble-minded folks. I don’t know of his working for anybody. If he has been engaged at manual labor for several years past, I do not know of his mental condition during that time. He went to the public school 1 think, but I don’t know how long. I don’t know how far he got in his books. I don’t know whether he can read or write; don’t know anything about his education. I know he has more sense than his brother Louis. Louis works and does as you tell him." He performs labor right along. He was never confined in a home for feeble-minded that I know of. The defendant had more sense than his brother Louis. He lived at my house one time. He would do whatever I told him to do but had to be watched. I am a first cousin of the defendant.
Defendant in addition to the foregoing testimony, introduced a number of witnesses for the purpose of showing that he was of weak mind and unable to determine the difference between right and wrong, in fact, that he was an imbecile and not a responsible or accountable person.
Among the curious features presented by this record is this excerpt: A physician testifying as an expert, as to the mental status of defendant and of his mother, was asked as to the latter, these questions, and gave these answers:
*166 “Q. State to the jury, in your opinion, from what you have learned, and what you know of her mental condition, by your own observation and knowledge, what is her mental condition ?
“A. She is feeble-minded, too.
“Q. To what degree is she feeble-minded ?
“A. I could not say. Perhaps she has more rationality than a person that would be more feeble-minded than she is A palpable truism.
Other witnesses on the part of defendant and on the part of the State testified that defendant could read and write; that he was the brightest of all the three brothers, that his older brother William, regarded as the dullest of the brothers, owned and lived on a farm near Cedar City, was married, had one child and was making a living; that Louis worked around town at odd jobs and did good work.
Now Louis, as well as his mother, were witnesses at tbe trial, on behalf of defendant. And it was in evidence that defendant’s father was a bright and skilled mechanic, but indolent. Other witnesses, both for State and defendant, gave testimony that they did not think that defendant was an idiot or fool either, but rather thought he was feeble-minded; that defendant worked in the postoffice two or three months as janitor, and did his work well; that he worked also in cutting up a crop of corn, and his employer stated that he never had a hand that obeyed instructions more implicitly, or did his work more satisfactorily; other witnesses thought defendant not a man of much intellect, but that he could tell right from wrong under ordinary circumstances; that he knew it was wrong to take human life. At this stage of Dr. Davis’s testimony defendant’s counsel was permitted, over the State’s objection, to ask the physician this question:
“Q. Suppose, Doctor, that the defendant was in a room,*167 in Ms own home, with a lot of boys that came in there in a drunken condition, and demanded a right to go in where the defendant’s mother was in another room, and that a controversy arose between him and one of the other parties as to whether or not that other party could go into the room where the defendant’s mother was — do you think that this defendant, Ed. Palmer, would be capable of distinguishing his acts of right from wrong under those circumstances ?”
“Q. Surrounded, as he was, by that excitement, and by those boys coming in there and demanding the right to go through the house and to see the defendant’s mother, and his telling the boy he could not go into the room where his mother was, and surrounded in that way, and under those circumstances, and the defendant getting against the door, and telling the other fellow that he could not go in there, would you think, in your judgment, Doctor, that the defendant, Ed. Palmer, would be capable of deliberating like a sane person ?
“A. I think not, in the sense that you or I would. I would not like to risk him in that state myself.”
None of the physicians who had testified in the case on the part of defendant had ever seen ihe hoy under excitement, or had any conversation with him on the street save speaking to him in passing, and none of them had ever examined him in ihe slighted way or manner.
The foregoing testimony has been carefully examined, and there was ample testimony to support the verdict of the jury, and to the triers of the facts was committed the duty, under the instructions, of determining whether defendant was criminally responsible, and they have found he was. This leaves to be examined the correctness of the instructions given.
The jury were instructed as to murder in the first and second degrees in usual form. These instructions were also given:
*168 “2. The jury axe instructed that mere weakness of intellect will not shield one who commits a crime, and in this case, although you may believe from the evidence that the defendant is mentally deficient in some degree, yet, unless you are reasonably satisfied by the evidence that at the time the alleged crime is charged to have been committed by the defendant, his mental faculties were so weak and his mind so deficient that he was unconscious at the time of committing the act that it was wrong, and that he ought not to do it, and that he had not the ability or mental capacity to choose between right and wrong, you will find the defendant guilty as charged in the indictment.
“3. The jury are instructed that every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proven, and where insanity or mental incapacity or imbecility is interposed as a defense, as in this case, the law requires the defendant to prove it to the reasonable satisfaction of the jury. And to establish such defense, it must be proven to the reasonable satisfaction of the jury that at the time of committing the act, the defendant was laboring under such defect of reason, from natural deficiency or disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong.”
The instructions just quoted, presented to the jury the law very fairly in its more particular bearing on the case at bar. Exceptions were taken on behalf of defendant to all of the instructions given at the instance of the State.
In addition to those given, the court at request of the defense gave these instructions:
“1. The jury are instructed that the plea of insanity or imbecility of mind is a lawful one in this case, and to establish the insanity or imbecility of the defendant, positive and direct*169 proof of it is not required by law, and to entitle him to an acquittal by reason of his mental insanity or imbecility of any character, circumstantial evidence, which reasonably satisfies your minds of its existence, is sufficient.
“2. The jury are instructed that 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 in the indictment; and incapable of understanding at the time the particular act in question was a violation of the laws of God and society: Wherefore, the court instructs the jury that if they believe and find from the evidence that at the time the defendant killed the deceased, Thomas Gannaway, if they find he did kill him, as charged in the indictment, the defendant was so perverted and deranged in one or more of his mental or moral faculties or was so afflicted with imbecility or weakness or mind as to be incapable of understanding, at the moment of said killing, that such killing was wrong, and that he, the said defendant, at the time, was incapable of understanding that this act of killing was a violation of the laws of God and man; if the jury find he was so afflicted they should find him not guilty.
“3. The jury are instructed that the indictment in this case is a mere accusation or charge and is no evidence of defendant’s guilt and no juror should permit himself to be influenced or prejudiced against the defendant for or on account of such indictment.
“á. The jury are further instructed that the law presumes the defendant not guilty of the charge in the indictment and this presumption of innocence remains and abides with the defendant in all stages of the trial until overcome by evidence which convinces the jury of his guilt beyond a reasonable doubt,*170 if therefore, after a consideration of all the evidence in the case, the jury entertain a reasonable doubt of defendant’s guilt, it is their sworn duty to acquit him.
“5. If the jury believe from the evidence beyond a reasonable doubt that the defendant at the county of Callaway and State of Missouri, on or about the twenty-third day of April, 1899, intentionally shot and killed Thomas Gannaway, in a heat of passion suddenly aroused by reason of said Gannaway threatening or attempting to pass through his house against his consent, then the law presumes that such killing was not done with malice but was the result of such passion, and in such case you can not find the defendant guilty of murder in either degree but you should find him guilty of manslaughter in the fourth degree and assess his punishment at two years’ imprisonment in the penitentiary, or by imprisonment in the county jail not less than six months, or by fine of not less thian five hundred dollars, or by both a fine of not less than one hundred dollars and imprisonment in the county jail not less than three months.
“If the jury find the defendant not- guilty otherwise than on the ground of insanity, the form of the verdict will be: ‘We, the jury, find the defendant not guilty.’
“If you find the defendant not guilty on the ground of insanity or imbecility and that he is insane at the present time, the form of the verdict will be: ‘We, the jury, find the defendant not guilty, on the ground of insanity and we further find that he has not recovered from such insanity.’
“If you find the defendant not guilty on the ground of insanity and that he has recovered from such insanity, the form of the verdict will be: ‘We, the jury, find the defendant not guilty on the ground of insanity and we further find that he has recovered from such insanity.’ ”
Eighteen other instructions were asked by defendant, but
Presenting, as these instructions on both sides did, the whole law of the case, they afford no cause of just criticism, and this remark answers any objection made to them; besides, defendant took no exceptions as to the court’s failure to instruct the jury on all questions, etc., and so is foreclosed from raising any such objection in this court. [State v. Cantlin, 118 Mo. 100, and many subsequent eases of the like tenor and effect.]
It is insisted for defendant that in his case an habitual chronic state of insanity, extending all through his life, was shown to have existed, and that the burden of proof was on the State to show a lucid interval at the time of the killing, and Lowe’s case, 93 Mo. 547, is cited in support of that position; and it does support it, but that case is totally foreign to the one before us; for this is a case not of insanity either in acute or chronic form, but a case of weak-mindedness, usually called imbecility, which is a long shot from insanity and this, defendant’s own medical witnesses testified was the case here.
A recent text-writer of more than ordinary excellence, touching the topic now in hand, states: “Imbecility, for example, in law may not only include general weakness of mind, which may be ex nativitatej as in the case of idiots, but dementia or the breaking down of the intellect caused by disease or old age.” [Clevenger’s Med. Jurisprud. of Insanity, p. 204.]
Elsewhere, the learned author says: “One may be criminally responsible where he is so under the guidance of reason as to be legally answerable for his acts, though he is suffering from mental derangement, and though he may not be capable of weighing the reasons for and against the act. The possession of sound faculties and full vigor of mind, unimpaired by disease or infirmity, is not required as a condition of criminal
And he further states that: “Imbeciles afford every grade of intelligence below the normal, and education, station, resources, etc., modify the aspects of their mental deficiencies, so that no possible standard can be invented that will divide imbeciles, even with approximate correctness. HoffbauePs
The quotations made are fully supported hy the authorities there cited, and they sustain the correctness of the two instructions copied above, given at the instance of the State. And although the defense in this case is weak-mindedness or imbecility, yet the same test, that of the ability to distinguish right from wrong in the doing of the particular act, must be applied to imbecility as well as to insanity.
I have heretofore quoted certain questions propounded to Dr. Davis on behalf of defendant, and to which the doctor gave a certain answer. These questions were objected to by the State, though the stenographer has not preserved the reasons given for the objections made, but which the court overruled. These objections should have prevailed, or the court should of its own motion have prevented the questions from being asked or the answer given; and for these reasons:
In the first place, there was not a particle of evidence that defendant exhibited any signs or token of excitement on the occasion of the shooting; the evidence is entirely the other way. In the second place, there was not an iota of evidence that any of the young men who went to defendant’s house on that Sunday were in a drunken condition. Nor, in the third place, that they, or any one of their number, demanded the right to go into another room of the house where defendant’s mother was. Nor, in the fourth place, that any controversy arose as to going into the other room. In the fifth place, the very point at issue was whether defendant could distinguish right from wrong in doing the act charged as criminal. This was for the determination of the jury; and an expert can not be allowed by answer to an improper question to usurp the province and functions of the triers of the facts.
An expert witness can not be asked his opinion as to whether the accused was capable of judging between right and wrong. [Shults v. State, 37 Neb. 497; Reg. v. Layton, 4 Cox, C. C. 149.] Nor to express an opinion that the accused acted under an insane delusion or. was impelled by an irrepressible impulse. [Patterson v. State, 86 Ga. 70.] And an expert witness may give his opinion as to the state of mind of the accused, but not as to his responsibility, that being a question for the jury. [Reg. v. Richards, 1 Frost. & F. 87; Reg. v. Burton, 3 Frost. & F. 772; People v. Thurston, 2 Park. Crim. Rep. 49; 1 Clevenger’s Med. Jurispru. of Insan. 585, 586.]
And it has been generally, if not universally held in cases where the objection has been made, that the question covered the point in issue, that the experts can not be asked the broad question whether they consider the person whose sanity is being litigated is out of his mind, or whether his mind was so affected as to be unfit to transact business (Deshon v. Merchant’s Bank, 8 Bosw. 461; Chickering v. Brooks, 61 Vt. 554); or to give their opinions on the whole case, as it would necessarily include a determination of the facts. [Negro Jerry v. Townshend, 9 Md. 145; Tardley v. Cuthbertson, 108 Pa. St. 395; In re McCarthy, 55 Hun 7; People v. Labe, 12 N. Y. 358; Clevenger’s Med. Jurisprudence of Insanity 542, et seq.]
These authorities effectually show the ineompetency of the question asked Dr. Davis as to what was the condition of defendant’s mind on the day of the homicide.
Notwithstanding it was permitted defendant to ask Dr. Davis and others such questions as above quoted over the State’s objections, yet, when the State attempted to do the same thing
It has already been stated that none of the physicians who were witnesses for the defendant had seen defendant under excitement or had conversed with him or had made any examination of him; and they evidently, that is, most of them, felt on that account a hesitancy in testifying on the subject; and such hesitancy was based on the correct principle, as shown by the authorities.
Thus, the testimony of a physician who had not studied the progress of the disease in question, and whose opportunities were limited for observing the personal habits and conduct of the person whose sanity is questioned, possesses' little if any value, and so it has been ruled.
And so, where a person is alleged to be an imbecile, such imbecility has been held not established, “on the evidence of two medical witnesses, neither of whom had ever conversed with him until the day before the filing of their report, and who had had no opportunity to test his mental condition.” [1 Clevenger Med. Jurisprudence of Insanity, and cases cited.]
Relative to the point about the affidavit of defendant’s counsel that two of the jurors made admissions to him derogatory to, and inconsistent with their verdict, it suffices to say,, what indeed every lawyer is supposed to know, that for about three quarters of a century in this State the inflexible rule has
I have thus considered the salient points presented in this record; the others, not mentioned, are frivolous and without merit.
The premises considered, the judgment will be affirmed.