Russell v. State , 53 Miss. 367 ( 1876 )

Chalmers, J.,

delivered the opinion of the court.

The principal question discussed at the bar was the one much mooted of late in the American courts, as to what is the proper rule with reference to the burden of proof in criminal cases where the defence relied upon is insanity.

The defendant offered and the court refused to grant three instructions, to the effect that the burden of proving the sanity of the accused is devolved by law upon the State, and that if the jury entertain a reasonable doubt of his sanity arising from the whole testimony in the case, they must acquit.

The refusal to grant these instructions, it is urged, was such error as must cause a reversal. It appears, however, upon an examination of the record, that the court below did not refuse these instructions because of the principles of law announced by them, but because those principles had already been announced in other instructions which had been granted.

Thus, by the ninth instruction granted for the defendant, the jury are informed that they must acquit, “ unless they believe from the evidence, and beyond every reasonable doubt arising from the evidence in the case, that the defendant was at the time of the homicide of sound memory and discretion to such an extent as to enable him to know the nature and quality of his act 5 and the burden of proof is upon the State to establish by satisfactory proof the guilt of the defendant, unless the evidence otherwise appears in the cause.”

Again, in the twelfth instruction for the defendant, the jury are informed that they must be satisfied of the prisoner’s sanity beyond every other reasonable hypothesis.

By the fifteenth instruction they are told that they must acquit, if the insanity of the prisoner is established by a preponderance of the testimony in the case.

We know of no theory of the law governing this class of defences which goes farther than these charges. If the State cannot complain of them, certainly the defendant-cannot.

The defendant moved to quash the special venire summoned in the case, on the ground that the jury-box from which it was drawn had not been legally prepared. The motion was sustained ; and thereupon the court ordered the sheriff to summon a special venire, as provided for by § 2759 of the Code, in cases where there is no jury-box. .To this the defendant excepted. The court in its order declared and adjudged that there was no legal jury-box in the county. The facts upon which this judgment was based are not before us, and we must presume that .they were sufficient. At all events, the defendant, who had just succeeded in quashing the first venire on1 this ground, cannot be heard to question it.

It is objected that the court of its own motion rejected a member of the venire, who stated that he had conscientious scruples against capital punishment. This was unquestionably correct, as decided in Lewis v. State, 9 S. & M. 115, 118, and other cases. The act of 1872, p. 88, which rendered such persons competent jurors, was repealed by the act of March 4, 1875.

J. T. Russell, the father of and one of the witnesses for the defendant, detailed a portion of-a conversation between himself and the defendant in reference to the deceased, which occurred the day before the killing. This was brought out by the defendant on the examination in chief; and when the witness was returned to him to be re-examined, he sought to bring out the balance of the conversation. This was objected to by the State, and the objection was properly sustained. The whole conversation was inadmissible in evidence on the part of the defendant. If a portion of it had been brought out by the State, the defence might have insisted upon the whole of it being detailed; but having been brought out by the defence, the prosecution might object at any time to any more of it being detailed, or might have excluded the whole.

Dr. R. L. Dunn, a physician of twenty years’ standing, was asked whether in his opinion the defendant was insane at the time of the killing. The objection made by the State was properly sustained. The witness had previously stated that although he had several years before been for a short time the defendant’s physician, he had not seen him for a considerable period before the killing, and had no knowledge of his condition at the time. He also stated that he had never regarded him as insane when he had personal knowledge of him, and did not so regard him at the time of the killing.

Manifestly he was not competent to give an opinion as to his sanity at the date of the homicide.

It was then proposed to put to Dr. Dunn a hypothetical question, embracing, as we suppose (though the question is not set out in the record), certain facts which had been deposed to by other witnesses, and to ask him as to his opinion of the defendant’s sanity, on the basis of said facts. To this also objection was sustained by the court, and, we think, rightly. The witness had previously stated that, though a practising physician of twenty years’ standing, he had never made the subject of mental disease a study, was not an expert in such matters, and was not an expert in “ psychological medicine.”

The asking of hypothetical questions upon a presumed state of facts, for the purpose of eliciting the opinion of a witness, can be justified only upon the theory that the witness is so familiar with the general characteristics of the subject under discussion as to be able to form opinions worthy of consideration, even though wholly ignorant of the particular transaction in controversy. Such testimony at best is of an exceedingly unsatisfactory character, and is often as much calculated to mislead as to guide to a correct conclusion. It is only in the exact sciences — and certainly medicine is not one of these — that their professors are able to say with any certainty that a given cause must produce a given effect, or that a particular result must have proceeded from a specific cause. Inasmuch, however, as in all pursuits and occupations there are some facts and principles which may be regarded as indisputable, the law permits persons who are experts in their several callings to express their opinions upon subjects with which their studies and occupations have made them familiar, even though they have no acquaintance with the particular transaction under investigation. But it is essential that the witness should be, or profess to be, ah expert in the general subject under discussion. No acquaintance with cognate pursuits will suffice, unless the matter inquired about is common to both professions.

The witness in the case at bar expressly disclaims being an expert in mental diseases, and said that he had not made such diseases the subject of special study. His twenty years of medical practice had probably been confined to the treatment of the ordinary diseases falling within the range of a country practitioner. Such an experience would not ordinarily qualify him to testify as an expert upon a question of insanity, upon hypothetical interrogations as to supposed, facts of which he had no personal knowledge.

Chief Justice Shaw, in discussing the admissibility of these hypothetical questions in cases of insanity, says: “ It is upon this ground that the opinion of witnesses who have long been conversant with insanity in its various forms, and who have had the care and superintendence of insane persons, are received as competent evidence, even though they have not had opportunit3r to examine the particular patient, and observe the symptoms and indications of disease at the time of its supposed existence. . . . But the opinion of a medical man of small experience, or of one who has crude and visionary notions, or who has some favorite theory to support, is entitled to very little consideration.” Commonwealth v. Rogers, 7 Met. 500, 505.

Dr. Gadberry, another physician, was not allowed to state his opinion as to the sanity of the prisoner at the time when he saw him, a few hours after the killing. On an inquiry as to the sanity or insanity of a party, it is proper to introduce testimony as to his condition before, -at the time of, and after the killing. Grant v. Thompson, 4 Conn. 203; Dickinson v. Barber, 9 Mass. 225. It appears, however, that the witness, at a subsequent period of his examination, was permitted to state that in his opinion the prisoner was insane at the time when he visited him in the jail, a few hours after the killing.

We will remark, in taking leave of the points arising on the plea of insanity, that an attentive perusal of the testimony fully satisfies us of the correctness of the finding of the jury on this subject. Apart from the fact that the prisoner had been some years before, and also in early childhood, subject to attacks of epilepsy, there is nothing to support the idea that he was insane, save the unprovoked and cold-blooded murder of which he was guilty; and this, we fear, proceeded only from the madness of passion, or from a wretchedly inadequate conception of the sanctity of human life.

Misconduct on the part of the jury was made the ground of a motion for a new trial in the court below, and is urged as ground of reversal here.

It appears that, during the progress of the cause, a number of the jury were made sick, by being fed upon tainted beef; their bowels being much affected thereby, the bailiff attending them, at their request, without the knowledge of the court, carried to them, at night, a pint and a half of whiskey, made into the beverage known as “ cocktail,” of which a number of them drank. The next morning he again carried to them a pint and a half of raw whiskey, a portion of which was consumed, and the balance removed from the room. During the same morning, and several hours after the whiskey had been drunk, one of the jurors became sick, while sitting in the jury-box, and vomited. The court took a recess, in consequence of his sickness, earlier than usual. An attempt was made to show that this juror was drunk on this occasion, but the attempt, we think, was a failure.

We have had some difficulty in determining what disposition to make of this assignment of error. There is scarcely any thing in legal procedure which is watched with such vigilance and jealousy as the verdict of a jury in criminal cases. It has been well said that it must not only be free from all improper influences, but from all suspicion thereof; and that when it has been shown that there was a possibility of its having been procured or influenced by improper means, it will impose upon the party seeking to uphold it the burden of establishing affirmatively that it was not so influenced or produced.

No cause can be more baneful to the purity of a verdict than the use of intoxicating drinks by the jury while engaged in their deliberations. Nothing can be more revolting to a sense of justice or of decency than the idea of the life or liberty of a citizen depending upon the maudlin deliberations of drunken jurors. The parties in a civil suit, and a fortiori the defendant in a criminal prosecution, have the right to demand that the case shall be tried, not only by jurors who are not drunk, but by men whose minds are not even influenced or clouded by liquor. Intoxicating liquors as a beverage, therefore, should be rigidly and carefully excluded from the jury-room; and if absolutely necessary for medical purposes, should be administered only in small portions upon the prescription of a physician and under the sanction of the judge. But while the introduction of such liquors in any other manner is highly censurable and should be the subject of exemplary punishment, it will not vitiate the verdict, if it can be affirmatively shown not to have injuriously affected the deliberations of the jury. The true rule on the subject is thus stated by Judge Smith, in Pope v. State, 36 Miss. 121, 136. Speaking of the introduction of liquor into the jury-room, he says : “ The true point of inquiry here is not whether these parties were guilty of improper and illegal conduct, but whether by such conduct the verdict was improperly influenced.” . . . “ Where facts are established which show that improper influences might have been brought to bear upon the jury, and there is no opposing testimony which negatives the presumption thus created, according to the settled rule of this court, the verdict will be deemed vicious.” He then reviews the facts proved in the case under discussion, and arrives at the conclusion that the presumption has been negatived, declaring that, “ notwithstanding the irregular and improper conduct of the bailiff and juror, there is no pretence for asserting that the verdict should be disturbed.”

Let us test the case at bar by this rule. The trial lasted five days. The liquor was given to the jury on the night of the second and early in the morning of the third day. The State had not then closed its testimony in chief, nor the defendant commenced his. The quantity of liquor was small, and only a portion of the second supply was drunk. Several of the jury are proved to have been affected by the spoilt beef, and it is stated that*, a number of them partook of the liquor. The quantity was therefore presumably insufficient to have seriously affected the minds of any of them. In addition, it was received at night and early in the morning, some hours before they were called upon in court to listen to testimony, and two days before they retired to consider of their verdict. Lastly, it is proved that “ their conduct during the whole trial was marked by great dignity, decorum and propriety.” Under these circumstances, we think it may be fairly said that it has been affirmatively shown that the verdict was not affected by the liquor.

In conclusion, we cannot forbear remarking that if the judge of the court below failed to punish the bailiff who furnished these jurors with liquor, he failed to discharge his duty. After the repeated decisions dn this subject, it is certainly time that both jurors and officers were informed as to the law in this respect; and if they will learn it in no other manner, it is the duty of the circuit judges to teach them by fines and imprisonment. Let the judgment be affirmed.