Schlencker v. State , 9 Neb. 241 ( 1879 )

Lake, J.

From a careful reading of the evidence as embodied in the bill of exceptions, we have reached the conclusion that it is sufficient to support the verdict of the jury-

That the prisoner shot and killed the deceased without any just cause or provocation is placed beyond all question. Therefore, if the act of shooting was voluntary, as it must be presumed in law to have been in the absence of proof to the contrary, it was, necessarily, unlawful. And, under these circumstances, the act was also malicious, for the rule is that if a man kill another without considérable provocation the law implies malice, for no' person, unless of an abandoned heart, would be guilty of such an act upon a slight or no apparent cause. 2 Broom & Hadley Com., 484 (Am. Ed.) And in addition to its being unlawful and malicious, to make the act of killing murder in the first degree, it is only necessary to establish that it was done with deliberation and premeditation, of which there was some evidence in the previous acts of the prisoner on the day of the homicide, among which is the important one of borrowing and arming himself with a revolver from which, he fired the fatal' shot. As to the sufficiency of the evidence on this, as well as all other branches of the case, that is a matter wholly within the province of the jury to settle. Palmer v. The People, 4 Neb., 68. This court has neither the right nor the disposition to usurp the province of the jury, or to interfere with their decisions of .questions of fact, unless the want of sufficient evidence to support the finding is very clear. This is all that need be said on this branch of the case, and we will now proceed to examine as to the alleged errors occurring in the admission of testimony, and in the instructions to the jury.

The record shows that on the conclusion of the cross-examination of Dr. Paine, a witness called on the part of the state, he was re-examined by the district attorney as to the extent of the wound upon the body of the deceased, of which he had given a general description in his direct examination. The witness being asked to give the diameter of the wound as nearly as he could, this was objected to on the ground that it was not a proper re-examination of the witness, inasmuch as it did not relate to any matter called out on the cross-examination. The general rule on this subject is, as claimed by counsel for the prisoner, that the re-examination should be limited to the points arising out of the cross-examination. But while this is the rule usually observed by courts, it seems to rest “ entirely in the discretion of the judge whether it ought to be strictly enforced or remitted as he may think best for the discovery of truth, and the administration of justice.” 2 Phillips on Evidence, 912.

Dr. Gilbert, one of the witnesses for the prosecution, in explaining to the jury the comparative size of a bullet, said to have been taken from the body of the deceased, and the wound of which she died, having testified that “the wound looked smaller than the ball,” was asked by the district attorney to explain why this was so, and “whether that would have been the case had the ball gone through the body — on the other side, how would it have looked ?” This was objected to by the prisoner’s counsel “as immaterial and incompetent.” The object of the question evidently was to have the jury understand that it was not at all remarkable or unusual that in this case the orifice appeared to be considerably smaller than the missile that they were asked to believe produced it. And this testimony was very proper, for it rested upon the prosecutor to convince the jury that the wound in question was made by the identical bullet then exhibited to them. Nór was it at all improper to state a supposed case, and thus show what, under different conditions, the appearance of a wound made by the same agency might or would have been. There is no just ground for complaint in this particular.

Again, it was contended in argument that the court erred in not restricting the cross-examination of the witness Kluetsch, by the district attorney, “to the facts and circumstances drawn out on his direct examination.” While the rule governing the cross-examination of witnesses is as claimed by counsel for the prisoner, the record shows that its violation was not the ground of complaint in the court below. The only objections there made were that the testimony was “ irrelevant and immaterial.” The testimony referred to may have been open to the technical objection made here, but it most certainly was not to those brought to the attention of the trial court. This being a court for the correction of errors, our examination of questions relating to the evidence is confined to such as were distinctly raised and passed upon" in the court whose record is under review.

The defense of insanity being interposed, and several witnesses having testified of strange conduct on the part of the prisoner shortly hefor.e, and on the day of the homicide, a number of witnesses, not experts, however, were examined by the state as to his conduct and appearance in their presence on sundry occasions, both before and shortly after the shooting occurred. The opinions of these witnesses as to the prisoner’s mental condition, based upon what they had personally observed, and then detailed to the jury, were admitted in evidence under the objection that they were incompetent evidence. That none but medical experts shall be permitted to give to the jury their opinions, based upon the testimony of other witnesses on the question of insanity,- is, we believe, universally held. In this case, however, the witnesses were the neighbors and acquaintances of the prisoner, knew him well, and their opinions were formed from seeing and observing him for several months, almost daily. Opinions formed under these circumstances, although not those of medical men, are, nevertheless, entitled to respectful consideration by courts and juries, and we have seen no satisfactory reason for holding them to be incompetent evidence. ■ We are aware that our conclusion on this point is in conflict with numerous authorities, but it is also sustained by many.

In Grant v. Thompson, 4 Conn., 203, Chief Justice Hosmer, in commenting on this sort of evidence, said: “ The best testimony the nature of the case admits of ought to be adduced, and on the subject of insanity, in my judgment, it consists in the representation of facts and the impressions which they make.” A nd what impressions are so reliable as those made upon the minds of intelligent persons, who, in addition to being well acquainted with the alleged lunatic,. have themselves witnessed the facts supposed to indicate mental derangement ? Clark v. The State, 12 Ohio, 483. State v. Klinger, 46 Mo., 224. Titlow v. Titlow, 54 Penna. St., 216.

And while on this branch of the case we desire to add that, although this defense of insanity was probably made in good faith, it does not seem to have anything substantial to rest upon. The evidence falls very far short of establishing its existence. That the prisoner was considerably intoxicated, and his mind somewhat clouded in consequence thereof, are doubtless true. But the fact that he was in a drunken state does not of itself render the act of shooting the deceased any the less criminal, nor is it available as an excuse. If, notwithstanding his intoxication, he were conscious that the act was wrong, he was a responsible agent, and answerable for all the consequences. In charging upon this point the judge told the jury, in substance, that they were at liberty to take the fact of intoxication as a circumstance to show that the act of killing was not deliberate and premeditated. This was right, and suggested to the jury the full extent of the effect that might legitimately be given to it. People v. Rogers, 18 N. Y., 9. People v. Belencia, 21 Cal., 544.

Several of the instructions given to the jury are also made the basis of alleged errors, but we fail to perceive any just ground for the complaint made in this particular. The instruction most complained of was given at the request of the district attorney, and was in these words: “ That settled insanity produced by intoxication affects the responsibility in the same way as insanity produced by any other cause. But insanity immediately produced by intoxication does not destroy responsibility when the patient, when sane and responsible, made himself voluntarily intoxicated.”

In the case of State v. Hundley, 46 Mo., 414, it appears that the court had instructed the jury “ that if they believed from the evidence that the defendant was laboring under a temporary frenzy or insanity at the time of the killing of Boyer, which was the immediate result of intoxicating liquors, or narcotics, he was guilty.” And in commenting upon this instruction the court said:' “ This instruction was unobjectionable, for, as we have already seen, temporary insanity produced immediately by intoxication does not destroy responsibility where the accused, when sane and responsible, made himself voluntarily drunk. But the crime, to be punishable under such circumstances, must take place, and be the immediate result of a fit of intoxication, and while it lasts, and not the result of insanity remotely occasioned by previous bad habits.”

The only substantial difference between the law as thus pronounced and the instruction complained of is in the omission from the latter of the qualifying clause limiting responsibility to cases of temporary insanity or frenzy. But while, under different circumstances, this omission might have been a serious matter, it certainly was of no consequence under the testimony in this case. There was not a syllable, of evidence of the existence of settled insanity. The utmost that was claimed, or that there was the least testimony to establish, was a mere temporary frenzy or condition of irresponsibility on the part of the prisoner. There is, therefore in this matter, no ground for complaint. .

Error is also alleged because of the refusal of the court to give several instructions to the jury requested on behalf of the prisoner. By the first of these it was sought to make his voluntary intoxication under certain circumstances a complete excuse for the homicide. There was no error in this refusal, for the court, as we have seen had already charged upon this point, and laid down the law correctly, recognizing the “well known and salutary maxim of our laws, that crimes committed under the influence of intoxication do not excuse the perpetrator from punishment.” Beck’s Medical Jurisprudence, vol. 1, page 333. Several others so requested were upon the subject of insanity. These, however, were substantially embodied in those already given by the court of its own motion, and it was unnecessary to repeat them.

In conclusion we think the law of the case, so far as our attention has been called to it, was very fairly given to the jury, and that notwithstanding the errors assigned, and relied upon, the judgment should be affirmed.

Judgment affirmed.