16 N.M. 625 | N.M. | 1911
OPINION OF THE COURT.
Several assignments of error relate to refusals by the court to admit testimony offered as to the insanity of the-defendant at the time he shot Hargis. It is a subject on which the adjudicated cases are so conflicting that it is very difficult for a trial court to steer a course which will avoid the rocks, and on the whole, we think the trial judge in this case did not succeed in doing it. Owing to the inability of all but now and then a person specially gifted, or trained, to describe adequately, the facts, circumstances and appearances from which he concludes that a certain person is sane or insane at a particular time, the courts have, as a rule, come to >permit such non-expert witnesses to give the conclusion itself, when their opportunities for observation have been such as to warrant it. In Cyc., vol. 17, 139, it is said: “The inference of a properly qualified, unskilled observer, as to the sanity or insanity of. a person observed by him is competent in a majority of the American states. The rule in this respect is the same in England, both in the ecclesiastical courts in proceedings' involving the question whether the testator was of unsound mind and in the common law courts, and in Canada. There is a strong tendency to unanimity in admitting this class of evidence observable in the action of the courts.” “The statement of inference must as a general rule be accompanied by a statement of the facts on which it is founded. Where the facts are not sufficient in the opinion of the court to give a reasonable basis for an inference, or sufficient admissible facts are not clearly stated, the witness is incompetent, or his evidence is entitled to but little weight. It is, however, inconsistent with the theory ,on which the rule rests — that of inability to state all the facts — to require that all the facts should be stated.” In Redfield on Wills, 1, c. 4, pp. 2, 145, note 24, it is said: “There will now remain scarcely any dissentients among the elder states; and those of recent origin, whose discussions have been based upon the authority of the earlier discussions of some of the older states, which have since abandoned the ground, may also be expected to change.” This view of the law has been adopted by the Supreme Court of the United States in Conn. M. L. Ins. Co. v. Lathrop, 111 U. S. 618; approved in Queenan v. Oklahoma, 190 U. S. 548, in which the court said: “But, as is pointed out in Connecticut Mutual L. Ins. Co. v. Lathrop, supra, it is impossible for a witness to reproduce all the minute details which he saw and heard, and most witnesses make but a meagre and halting effort. Therefore, in this, as in many other instances, after stating such particulars as he can remember — generally, only the more striking facts — an ordinary witness is permitted to sum up the total remembered and unremembered impressions of the .senses by stating the opinion which they produced. To allow less may deprive a party of important and valuable evidence that can be got at in no other way.” Bee, also, Jones on Evidence, 1st ed., sec: 366.
The exclusion of the testimony of Mrs. McNabb, the wife of the defendant, may be taken, for our purposes, to illustrate this class of testimony-excluded. She had been the wife of the defendant and had lived with him for eight years, and, although there had been for a short time estrangement between them on account of Hargis, she continued to see him "every day, or every other day” up to the time he shot Hargis: Probably no other person living bad equal opportunity to observe and know him, and to notice whether any 'change occurred in him. She had the usual difficulty in confining herself to a description of the acts and circumstances from which she had apparently derived an impression,, or opinion she was not allowed to give. Extract's from the record will best convey an understanding of what took place and its natural effect:
Q. How long have you been married to the defendant ? A. Eight years.
Q. I will ask you, Mrs. McNabb, if for a period, say of fifteen or twenty days previous to the death of Mr. Hargis, you noticed anything peculiar in the conduct and character of your husband, the defendant in this case?
Mr. Mann: This is objected to as incompetent, irrelevant and immaterial, and that nó proper foundation for the same has been laid; the rule being that where non-expert testimony is attempted to be introduced for the purpose of showing insanity, that the facts must first be stated before any opinion of the witness can be given.
The Court: Sustained, a,s calling for a conclusion of law.
Q. Well, now, during that period of time, state what was his conduct and general deportment and demeanor, if you observed it? A. I observed a great change in Mr. McNabb, he dicbo.lt seem like the same man when he came home—
Mr. Mann: I ask that the answer of the'witness be stricken as a conclusion, and not as a statement of facts from which the jury may draw any inference or conclusion as to the conduct of the defendant during the period stated.
The Court.: Sustained.
To which ruling of the court the defendant, by his coúnsel then and there, duly excepted.
Mr. Mann: Ask that the jury be instructed that this be "withdrawn.
The Court: Gentlemen of the Jury, this last answer of this witness is stricken and will not be considered by you in arriving at a verdict.
Q. State what particular acts in the conduct and general demeanor of your husband you noticed and observed during the period of time mentioned, that makes you say, that he was a changed man and was not the same man he had been before ?
Mr. Mann: This is objected to as leading and suggestive, and for the further reason that it is assuming the fact not proven and based upon an answer which has been stricken from the record.
The Court: Sustained.
To which ruling of the court, the defendant, by his counsel, then and there duly excepted.
Q. If you noticed anything, any actions in the conduct of your husband that were uncommon in him during the time that I have mentioned, that is, for fifteen or twenty days prior to the death of Mr. Hargis, state what they were ?
Mr. Mann: This is objected to as leading and suggestive ; as assuming a fact or state of facts not proven and calling for a conclusion of the witness.
The Court: Overruled.
Q. (Repeated). A. Yes, he was nervous and very much excited, and seemed to be mad, and, well — he didn’t seem like himself. He impressed me as being crazy, perfectly wild.
Mr. Mann: The Territory moves to strike all the answer of this witness as incompetent, irrelevant and immaterial; as mere conclusion of the witness and not containing any statement of facts upon which the jury may draw any inference as to the sanity or insanity of the defendant. (Answer read to the word “mad'.”)
The Court: So much of the answer as has been interpreted to you may stand in evidence; the remainder of the answer, where this witness stated that the defendant appeared crazy and wild, is stricken from the record, and will not be considered by you in arriving at a verdict.
Q. You have stated some acts or actions in the com duct of your husband that you have stated were uncommon in him. Can you state any others, any acts of his, or of his conduct that were uncommon in him ?
Mr. Mann: This is confined to the same period of time ?
Mr. Larrazolo: Within that period of time.
The Court: Mrs. McNabb, answer the question just propounded to you, but do not give any impression or opinion.
Q. Just what you noticed that was uncommon in him in addition to his being excited - and mad and nervous as you have said? A. Well, as I stated, he didn’t seem like the same man.
Q. That is not an answer to my question, Mrs. Mc-Nabb.
The Court: The last statement of this witness, gentlemen, is not to be considered by you as evidence. Now, don’t give your opinion, or what it seemed to you; state merely the acts and conduct, if any, which were uncommon, out of the ordinary; definitely, specific acts during that fifteen days? A. He wasn’t kind; he wasn’t agreeable; he was nervous and highly excited.
Mr. Mann: I move that all of that be stricken as a repetition of the answer just given.
The Court: Overruled.
Q. Now, from your observations of the actions and conduct of your husband, the defendant in this case, during the period of time stated, that is, for fifteen or twenty 'days prior to the death of Mr. Hargis, state what impression he made on you, as to whether he was sane or insane ?
Mr. Mann: This is objected, to as incompetent, irrelevant and immaterial, and for the reason that no proper foundation for this question has been laid. The testimony which has been given by this witness does not show any act, specific act, but merely that during the period he was nervous, .excitable, angry and unkind, and the opinion of this witness as to his sanity or insanity would not have any weight more than the opinion of the jury upon the same statement of facts which the witness has related. 1 call the court’s special attention — no specific act has been shown.
The Court: Sustained.
To which rulings of the court, defendant, by his counsel, then and there duly excepted.
Mr. Larrazolo: I desire to properly understand the meaning of the court. Do I understand that the court holds that non-experts cannot give either their opinion or their impression touching the sanity or insanity of the subject, after showing they were acquainted with them, .and in position to observe their conduct?
The Court: I hold that this witness from her testimony, simply testifying that the defendant was nervous, excitable, liiad and unkind to her, is not qualified to give her opinion as to whether the defendant was sane or insane at that time.
Q. Have you stated, Mrs. McNabb, all those things and acts, doings and sayings of your husband, during the time that I have mentioned, that you found to be uncommon in him? Have you stated them all, or can you describe them all?
Mr. Mann: This is objected to as leading and suggestive.
The Court: Overruled.
Q. Can you describe them all or can you not, say so. A. No, I cannot describe them.
Q. You may state, Mrs. McNabb, from the conduct and acts, doings and sayings, of your husband, during the period of time that I have mentioned, namely — within fifteen or twenty days immediately prior to the deauh of Mr. Hargis, what was your husband’s appearance
Mr. Mann: This is objected to for the reason that she has already stated all that she says she can state of the actions and conduct of her husband, and that she could not describe further his actions and conduct, and that the jury are the best judges from the action and conduct she has described as to the mental condition of the defendant, and, further, as it calls for a conclusion of the witness and not for facts.
The Court: Sustain the objection.
To which ruling of the court, the defendant, by his counsel, then and there duly excepted.
Q.. From your observations of your husband’s conduct, of his actions and doings and sayings, and from his general appearance for a period of fifteen or twenty days prior to the 'death of Mr. Hargis, I want you to state what impression did you form in regard to the sanity or insanity of your husband?
Mr. Mann: Objected to for the same reasons heretofore given.
The Court: Same ruling. Sustained.
To which ruling of the court, «defendant, by his counsel, then and there duly excepted.
We think this shows a violation of the principle laid down in the authorities already cited, and is at variance, besides, with Charter. Oak L. I. Co. v. Rodel, 95 U. S. 238-239. While it is true that the trial court was charged with the duty of determining whether from the facts stated the witness should be allowed to give an opinion on the question of sanity, that is not an absolute power regardless of circumstances. -In Cyc., vol. 17, p. 34, it is said: “The ordinary observer, — The man in the street’ — is qualified if it affirmatively appears to the presiding judge that he has had sufficient opportunities for drawing the inference which he proposes to state, and the capacity necessary to make and state it.” And, on page 31, of the same volume: “The qualifications of a witness, as to knowledge and capacity must be established as facts, to the reasonable satisfaction of the trial court, whose finding will not be reviewed except in case of manifest mistakes.” But if “clearly erroneous” the ruling will not stand. Chateaugay Ore Co. v. Blake, 144 U. S. 476; Clary v. Clary, 24 N. C. 78; People v. Schmidt, 106 Cal. 48; 39 Pac. 304; Montana R. R. Co. v. Warren, 137 U. S. 348-353; Maughan v. Burns, 64 Vt. 316; Wright v. Williams, 47 Vt. 222.
