127 S.E. 35 | W. Va. | 1925
The defendant was indicted jointly with her mother, father and brother for conspiring together to murder her infant child, and in pursuance of this conspiracy, the life of the child was taken. Electing to be tried separately, she was tried at the April term, 1923, of the Circuit Court of Fayette County, and convicted of murder in the second degree. The court, on motion of the defendant, set the verdict aside, for the reason stated on the record that some testimony upon the trial of the case was inadvertently taken in the absence of the defendant. Another trial was had at the July term, 1923, of said court, and resulted in her conviction of voluntary manslaughter. She moved for a new trial, which was refused, and was sentenced to four years in the penitentiary. From this judgment she appeals to this court.
The evidence shows that the defendant, a girl of nineteen years, gave birth to a child; that a few hours thereafter some small boys, in play, found a dead infant in a large concrete culvert under the road a few yards from defendant's home; that the child had a man's string tie, identified as having belonged to defendant's father, tightly drawn and knotted around its neck; and that it was wrapped in an old bed quilt and in a sack. A paper with the name of defendant's father thereon was also found in the sack. Some of the facts connecting the accused with the crime will be commented upon later in this opinion. The doctor who made the physical examination of the body testified that from the color of the face, the bulging eyeballs and the protrusion of the tongue, the child had lived after it was born, and that death was caused by constriction around its neck. There were some spots of blood on the comfort and also some tar. It was shown that the house in which the defendant lived with her father, had been only a few days before painted with tar, and that there was tar on the weeds in front of his home. The defendant pleaded not guilty, and interposed a defense of mental incapacity and insanity; two physicians under whose care she had been for ten days after the alleged murder, as well as Dr. Guthrie, an expert on mental diseases, testified *239 that in his opinion the defendant was a mental defective. In rebuttal, the State placed a number of witnesses on the stand, who after showing that they had known the defendant for years, and had had occasion to observe her actions and demeanor, stated that she was intelligent and showed no signs of low mentality; that they had never observed anything out of the ordinary wrong with her; and that she acted as other young folks of the community.
In the brief filed by her learned counsel there are four assignments of error. Each will be considered and disposed of in their order here.
The first attacks the validity of the jury. J. D. Kincaid, one of the petit jurors, on his voir dire, testified that he was not related to the defendant, had read an account of the occurrence in the Montgomery News, had formed or expressed no opinion as to defendant's guilt or innocence, was conscious of no bias or prejudice against her, and felt free to throw aside any of the impressions he may have formed by reason of having read and heard of the case, and could give the defendant a fair and impartial trial just as if he had never heard of it at all. In response to questions propounded by counsel for defendant, he stated that he probably might have formed some opinion in the beginning; having heard that there was a hung jury on the other trial that would put aside all opinion he might have had on the former occasion as to guilt or innocence. On being asked if he should learn that there was not a hung jury, would that change his opinion about it, and to which he replied that if he heard that there was not a hung jury he would not know anything about it, but if the jury gave a verdict of guilty he would feel that she was guilty. He was then asked if he had heard that the jury convicted the accused, would he assume the accused was guilty, and to which he replied that he would. If he had heard the jury had returned a verdict of guilty he would assume that the party was guilty. He was again interrogated by the court, replying that he lived at Kincaid, twelve or thirteen miles from Boncar, the place of the alleged offense; that he felt now that he could give the defendant a fair and impartial trial just as if he had never heard of the case, and *240
completely disregard anything he may have heard or read of it. Under the law the defendant is entitled to a panel of twenty jurors free from bias or prejudice, whose minds are in a condition to hear, consider and properly weigh the evidence as it is presented to them at the trial uninfluenced by what they have heard or read of the case before trial. State v. Johnson,
The next assignment of error goes to the admissibility of certain evidence which the court permitted to go to the jury on behalf of the State. To a proper consideration of this point a brief statement of the testimony offered on behalf of the defendant, to which the evidence complained of was a reply, is necessary. To sustain the defense on the grounds of mental incapacity to commit the crime charged and insanity three physicians testified in the case. This testimony went largely to her mentality. One expert on mental diseases testified that her mental capacity in his opinion corresponded to that of a normal person of the age of twelve years. Her father, mother and brother testified that she had "spells" *243
during which she was incapable of knowing what she was doing, and at rational periods she had a low grade of mentality. One or two neighbors gave evidence to the same effect. To meet this issue a number of witnesses, who had testified in chief for the State, were called on rebuttal, and permitted to testify against the objection of the defendant, in respect to the conduct and demeanor of the accused. It is contended that these witnesses, who were not experts, were incompetent to testify, but if so, their testimony was not based upon a legal foundation therefor. The courts are not uniform in their holdings upon the admissibility of evidence of non-experts. The rule is well fixed that non-experts having favorable opportunities for ascertaining by observation, the facts, may testify as to their opinion respecting the sanity or insanity of another. State v. Bryant,
Testing the challenged evidence of the State in the light of the foregoing rule what do we find? All of the witnesses, offered on rebuttal, had testified in chief for the State. They were neighbors of the Toney family and had known the defendant from childhood. They had been on intimate terms with the Toney family. For instance, Mrs. Thomas, lived only about 150 yards from their home, was the owner of a store in Boncar, and Bertha had often been to this store as a customer. The following question an answer is assigned as error: *244
"Q. Tell what her conduct and her actions were when you heard her talk?
A. She would come to our house and store and sometimes she would purchase goods. And she was nice and intelligent at my place. She talked as sensibly as anybody."
Alpha Martin was another neighbor of long standing of the Toney family. Only two houses separated the two homes. Bertha had been at her home "lots of times." She came in and out of her home with Mrs. Martin's daughter, who was about Bertha's age — only from June to January difference in their ages. The following question and answer is assigned as error:
"Q. How did she act when she would be at your house?
A. All right. I never noticed anything wrong with the child."
W. O. Caldwell had worked in a company store at Boncar for three years. He had known Bertha Toney all that time. She came into the store for her mail almost every day. Then follows the question and answer assigned as error:
"Q. How did her conduct compare with other persons of ordinary intelligence?
A. Miss Bertha and the folks with whom she associated were practically no different. I would say, no different. Just like young folks would be, and they mixed together as any other young folks do mix in places of that kind."
Emma Buster had lived at Boncar for thirty years, and had known Bertha Toney ever since she was a child. She saw her at church and Sunday school often. In fact, Bertha was a member of the same Sunday school class as this witness. The following question and answer is assigned as error:
*245"Q. How did her conduct and demeanor — how did it compare with the conduct of an ordinary person?
A. A person of ordinary intelligence."
O. N. Mays is a minister, and lived within two hundred yards of the Toney home for twenty-three years. He has known Bertha since childhood. She attended a singing school taught by him for three terms. He saw her often at Sunday school and at church. She sometimes played the organ in Sunday school and sang in the church choir most of the time. He took her home from the children's day service, the day that she had a "spell" as testified to by a witness for the defendant. The following question and answer is assigned as error:
"Q. Did you observe her conduct with reference to anything unusual or out of the ordinary? In other words, how did her conduct compare with the conduct of a person of ordinary intelligence?
A. Her intelligence seemed as good as other people who came to the singing school and church."
The questions and answers objected to are set out in extenso. It will be observed that in each instance, before the opinion of the witness was expressed, the facts and circumstances upon which the opinions were formed were detailed. The evidence was in rebuttal of the evidence, some of it non-expert, offered by the defendant, which sought to establish the fact that she was incapable of committing the crime laid at her door — that she was irresponsible. The character and quality of the defendant's mind, as to whether it was weak or strong, is a material fact in a prosecution for homicide in which the defense is insanity.People v. Worthington,
The next assignment or error relates to the instructions given in the case. Instruction No. 1, for the State, defining conspiracy, is complained of. Counsel for defendant admits that it is a correct definition but a mere abstract proposition of law and without evidence to support it. While there may be slight or no evidence adduced attempting to show conspiracy, yet inasmuch as the indictment charged conspiracy, defendant could not have been prejudiced by it. If anything this definition of the term, if there is no evidence to support it, as claimed by counsel for defendant, would tend to cast a greater burden upon the State to convict the defendant. Instruction No. 4, requested by defendant, was refused by the court. This instruction substantially tells the jury that if they believe that there is no eye witness to the homicide, and that the State relies upon circumstantial evidence to convict the defendant, the burden is on the State to prove the homicide by circumstances sufficient to convince the jury to a moral certainty of her guilt. The court's refusal to give *247 this instruction was based on the fact that it is a repetition of instructions Nos. 2 and 3. They are:
Instruction No. 2 — "The court further instructs the jury that since the State in this case relies for conviction upon evidence in whole or in part circumstantial, that it is essential that the circumstances should, to a moral certainty actually exclude every hypothesis but the one proposed to be proved, and that unless they do to a moral certainty exclude every hypothesis but the one proposed to be proved, then they should find the defendant not guilty."
Instruction No. 3 — "The court further instructs the jury that circumstantial evidence means proving a thing by circumstances, that is to say, after certain circumstances have been proved that the jury might, if they were satisfied that such circumstances were proved, conclude that a certain result followed, and if in this case you believe that some essential part of the State's case depends upon circumstantial evidence, then it is essential that the circumstances should, to a moral certainty, convince you that they establish the fact essential to be proved, and unless you do believe such circumstances establish to a moral certainty the essential fact to be proved, then such fact would fail of proof and the defendant would be entitled to the benefit thereof."
These instructions amply justify the action of the court in overruling Instruction No. 4.
Instruction No. 7, offered by defendant and refused by the court, tells the jury that in the absence of a conspiracy, before a conviction could be had it would be necessary for the State to prove beyond a reasonable doubt that the defendant committed the alleged homicide with her own hands. The substance of this request is embraced in defendant's instructions No. 11 and 13. In No. 11 the jury is told that if the State has not proved that anyone saw the acts which are alleged to have produced the death of the infant child, and no eye witness has been produced that has established the homicide by direct evidence, then they are instructed that the circumstances proved by the State must be such, when all considered together sufficiently strong to convince them *248 beyond all reasonable doubt that the child was born alive and that its death was the result of the intentional criminal acts of the defendant. Instruction No. 13 likewise tells the jury that unless they believe from the evidence beyond all reasonable doubt that the infant child was born alive and that its life was taken by some person or persons, and that the said defendant was the person who took the life of said infant, or was present aiding and abetting in the commission of the offense with which she is charged, it is their sworn duty as jurors to acquit her. It is not error to refuse to instruct on a point already sufficiently covered by other correct instructions given in the case.
The last error assigned is that the evidence was insufficient to warrant the verdict. The evidence shows that the infant was killed by strangulation; the physician at the inquest and on the trial testified to this effect. He stated that the child was cyanotic, or blue, in the face, and the rest of the body a normal white. This condition was on account of the impaired venous return circulation from the head to the heart, the stagnation of the venous blood, causing the blueness. There was bulging of the eyeballs, and protrusion of the tongue, which would not have occurred had the constriction been placed around the neck after the death of the infant. Criminal agency is sufficiently shown where a dead body is found with injuries apparently sufficient to cause death, under circumstances which exclude inferences of accident or suicide. In a case of this kind whether the child was born alive is a question of fact to be determined from the circumstances. 2 Wharton Crim. Ev. Sec. 325 d, 327. Direct evidence is not essential to prove thecorpus delicti in any case. It may be proved as any other fact may be proved which is essential to establish the guilt of the accused, namely, by circumstantial evidence which produces "the full assurance of moral certainty" on the subject. State v.Flanagan,
Affirmed.