Smith v. State , 182 Ala. 38 ( 1913 )

SOMERVILLE, J.

The defendant, 20 years of age, after four years absence in the naval service, returned home and was living in the house with his mother and sister. 1-Ie reached home on Friday, and on the following Thursday night he killed his brother-in-law, Turner Lewis, by shooting him to death with a pistol. He was indicted for murder and tried on pleas of “not guilty,” and “not guilty by reason of insanity.” He was found guilty of murder in the second degree and sentenced to imprisonment for 40 years.

Defendant’s sister was the wife of deceased, but had separated from him some time previously, after which deceased had repeatedly exhibited hostility towards her and her mother and younger brother, manifested by threats to kill, and charges of unchastity and prostitution. He had also, it is claimed, stolen away from his wife one of their two children, a little girl, and carried her to Atlanta and .placed her with another woman in a house of ill fame, from which she was afterwards rescued by the mother. Upon his return home, defendant, who was in poor health, was informed of these grievous wrongs, and, according to the testimony of the members of his family, was profoundly affected thereby, and had brooded over them until his mind was affected and he became insane. On the night of the killing his mother had called him home and discussed with him the fact of deceased’s presence near by in Alabama City, as a result of which she had gone to bed nervous and ill. After waiting there a few minutes, defendant put a pistol in his pocket, went to Alabama City, and, going to the house of one Noble, where deceased was staying, he requested of Noble an interview with deceased. The latter had retired to bed, but Noble showed defendant into his room and left him there. Defendant’s account of what followed is as follows: On direct examination: “I went in there and spoke to Lewis and asked him how he Avas, and told him to get up. and come outside; I wanted to talk to him. He said, What in the hell do you Avant?’ and ran his hand under the pillow. When he did that, I asked him what he had to say for himself, and that is the last I realized what I had done. * * * I did not appreciate what I was doing at the time.” On cross-examination: “I shot Turner three times, but I do not know where I hit him the first time, nor do I know where the second shot hit him. * * * He was on the left side of the bed, and his left side was to me. * * * I asked him what he had to say for Tiimself, and he said nothing. I don’t know whether or not I fired just then.”

Apart from the defense of insanity, defendant was on the undisputed evidence, including his own testimony, guilty of Avillful murder. — Parrish v. State, 139 Ala. 16, 52, 36 South. 1012; Rogers v. State, 117 Ala. 9, 22 South. 666. Such offenses as those which inspired this killing, hoAvever reprehensible and exasperating, are no justification in law, and cannot suffice to reduce the homicide below the grade of murder. No one can constitute himself the judge and executioner of even a wicked and worthless man, except that he become himself a murderer and answerable for his crime at the bar of justice.

The only real issue of fact before the jury was whether defendant Avas so unsound of mind as to render him legally irresponsible for the homicide. The evidence adduced in his behalf on that issue was from the mouths of his nearest relatives, and Avould scarcely have satisfied the jury of the truth of the plea. Nevertheless, defendant Avas entitled to a fair consideration of the entire evidence, and to a proper instruction to the jury as to the burden and measure of proof, on the issue of insanity.

After stating to the jury the general nature of the issue, the trial judge instructed them, ex mero motu, that “the burden is cast upon the defendant to clearly prove to the reasonable satisfaction of the jury he is mentally incapable and irresponsible for Ms criminal acts. * [And] if, after considering all the evidence, that tending to show insanity as well as that tending to show sanity, Avith the presumption the Iuav indulges as to every person who has reached the age of legal responsibility as to his acts, the jury should have a reasonable cloubt as to Avhether or not the defendant is insane, then you need not consider further the defendant’s plea of not guilty by reason of insanity, but may pass to the other issue joined on the defendant’s plea of not guilty.” The latter clause of the charge, as; above quoted, Avas duly excepted to by defendant. It Avas clearly erroneous, and, as we are unable to say that it did not affect the verdict, it must work a reversal of the judgment. The statute (Or. Code, § 7175) requires that “the defense of insanity in all criminal prosecutions shall be clearly proved to the reasonable satisfaction of the jury,” as correctly stated in the first clause of the charge. The latter clause exacted of defendant a far higher measure of proof than the law requires, since it authorized the jury to disregard the plea if they entertained a reasonable doubt of defendant’s insanity— thus requiring him to prove his insanity beyond a reasonable doubt. This is contrary to the statute and to the AAdiole current of our decisions on the subject. — Ford v. State, 71 Ala. 385; Maxwell v. State, 89 Ala. 150, 7 South. 824; Lide v. State, 133 Ala. 63, 31 South. 953.

It cannot be fairly said that a later repetition of the correct rule in the oral charge or in Avritten charges, given at defendant’s request, neutralized the effect of the language excepted to; for the natural interpretation to be given to the whole was' that the erroneous statement was the court’s exposition of Avhat was meant by clear proof to their reasonable satisfaction. And, indeed, it was the duty of the jury to thus reconcile all of the instructions given them.

There was no material dispute as to the time, mode, manner, or circumstances of the killing; nor was there any real necessity, on defendant’s own testimony, for an ocular demonstration to the jury of the number, location, and range of the bullets by the use of the clothing worn by deceased at the time he was shot. Yet these garments served to illustrate, by the bullet holes shown, some material features of the evidence, and their admission in evidence was not erroneous. This subject has been recently and fully discussed in the case of Rollings v. State, 160 Ala. 82, 49 South. 329, where the authorities are reviewed.

While that feature of the matter would not ordinarily be a ground for reversal, we are at a loss to understand why the witness was allowed to demonstrate to the jury the appearance and condition of the clothing in respect of matters equally open to their perception and knowledge; as, for example, where the bullets entered, and how many holes there were. Such a practice ought not to be approved unless there are special reasons for its indulgence.

Any intelligent and mature witness may ordinarily be allowed to state that visible wounds observed by him are gunshot wounds, for the matter is, in general, one of common knowledge. But, without the special knowledge of an expert, a witness cannot state that such wounds are made by a bullet of a particular caliber. There was, however, no dispute about the nature of the wounds; and the caliber of the bullet was immaterial, and its improper proof perfectly harmless to defendant.

So, also, it appeared without dispute that defendant was 20 years old at the time of the homicide, and there was no prejudice to defendant in allowing a state’s witness, who did not know his age and had only known him a few years, to estimate his age to be 21 or 22. The witness was not qualified to testify to defendant’s age, and his opinion on a matter equally perceptible to the jury should not have been received. But it was manifestly harmless.

On the cross-examination of defendant’s brother, Homer Smith, who had testified to defendant’s manifestations of mental aberration prior to the killing, and also that in his opinion he ivas not then in his right mind, the state was allowed to question him as to conversations had on that subject between the witness and his mother and sister. Such conversations were, of course, not competent as original evidence, but they were very clearly competent, on cross-examination, to test the value of his opinion by showing the sources to which it might in part be ascribed, and the influences which may' have' moulded it.

In any view, it could not have prejudiced defendant, since the statements of his mother and sister, as quoted by the witness, merely corroborated what they testified to as witnesses.

The fact that defendant, while serving in the navy, often sent, part of his wages to his sister for the support of her and her children, was not relevant to any issue in the case, and was properly excluded.

What defendant said and did just after the killing was all clearly relevant to the issue of insanity, and some of the matters were relevant also to the general issue. They were properly admitted.

A reasonable doubt of the guilt or innocence, as a postulate for an acquittal, exhibits a useless confusion of thought, and charges 5 and 7 requested by defendant in that form were properly refused. — Winter v. State, 132 Ala. 32, 31 South. 717, charge 4.

Charge 13 has been several times condemned by this court as argumentative, and it was properly refused.—Watkins v. State, 133 Ala. 92, 32 South. 627; Spraggins v. State, 139 Ala. 93, 35 South. 1000.

Charge 16, though its verbiage may be subject to hypercriticism, i§ a correct statement of the law. — Hunt v. State, 135 Ala. 1, 33 South. 329; Stewart v. State, 133 Ala. 105, 31 South. 944.

Its refusal was not error however, since it was satisfactorily covered by given charges 3 and 4.

“Lack of ease, uneasiness, distress, trouble, trial, etc.,” are often symptoms or causes of mental disease, but are not mental disease per se, in any legal sense, as asserted by charge Al. The charge invaded the province of the jury, and was for this reason, not to mention any other, properly refused. .

Charges Al, DI, El, and X2 are all radically defective in omitting, as an essential condition to irresponsibility by reason of inability to refrain from doing the act, the predicate that such inability is the product solely of mental disease. — Parsons v. State, 81 Ala. 577, 2 South. 854, 60 Am. Rep. 193.

El also singles out evidence for the consideration of the jury.

Charge 03, though morally correct, is a mere homily on jury duty, and was properly refused.

Charge Y2 asserts that a mere insane impulse, controlling the will or judgment, creates criminal irresponsibility, and it was of course properly refused.

The fact that a homicide is An off-spring or product of mental disease in the defendant” is deficient as a predicate for criminal irresponsibility, since it omits the essential conditions which lead to that result, as prescribed by our decisions. — Parsons v. State, 81 Ala. 577, 2 South. 853, 50 Am. Rep. 192; Parrish v. State, 139 Ala. 16, 50, 36 South. 1012.

It is proper to remark that numerous charges were given at defendant’s request defining criminal irresponsibility by reason of insanity, which were substantial embodiments of the refused charges, and which were therefore too favorable to defendant upon that issue.

The state’s motion to dismiss the appeal must be overruled on the authority of Campbell v. State, infra, 62 South. 57, from which the present case cannot be distinguished.

For the errors noted, the judgment will be reversed, and the cause remanded.

Reversed and remanded.

All the Justices concur, except Dowdell, C. J., not sitting.