Commonwealth v. Brown ( 1899 )

Opinion by

Mb. Justice Dean,

The defendant was convicted of murder of the first degree on June 20,1899, and sentenced to death. The evidence showed that, on December 31, 1898, he had stabbed to death his wife, Lucinda Brown. Because of domestic trouble they had been separated for about three years. From the evidence, the jury found all the elements of murder of the first degree. They could not have found otherwise. We now have this appeal with six assignments of error. The first alleges error in the admission of the testimony of Magistrate Cunningham. On October 12, 1898, the prisoner had been arrested on a charge of breach of the peace, on information made by his wife. At the hearing he was committed; on leaving the magistrate’s office, he announced publicly he “ would get even with her as soon as he got out.” Very soon after he was released from prison he committed the murder. It is objected that no note of what was said by the prisoner appears on the magistrate’s docket, which was offered in evidence, solely for the purpose of showing the date and nature of the proceedings; therefore, it is argued, the testimony contradicted the record and was inadmissible.

It was wholly immaterial whether the prisoner testified at the hearing, or, if he did, that the magistrate had made no minute of his testimony. The purpose was to show that the prisoner had threatened his wife and the cause that prompted the threat; the evidence was properly no part of the record, and even if it was and the officer had omitted it, he could still testify from recollection as to what the prisoner said. And the magistrate’s docket, although not that of a court of record, was also clearly admissible to show the date and nature of the proceeding, especially when its verity was supported by the testimony of the officer who made the entries. This assignment is overruled.

The second, third, fourth and fifth assignments allege error in admitting the testimony of four witnesses, Sheldon, Hamilton, Fuller and Miller. The prisoner set up the plea of insanity, and to sustain it offered the weakest sort of testimony, such as, that he was continually talking of his marital trouble to those of his friends who would listen to him, and complaining of the obduracy of his wife, who, on account of his ill treatment of her, persisted in living apart from him. In their opinion he was insane on this subject. It was undoubtedly defendant’s right to adduce such testimony although the witnesses were not experts, but only acquaintances. But in answer thereto the commonwealth called the four witnesses mentioned; all but Sheldon were well acquainted with him from one to three years ; they testified, after stating their opportunities for observation, that in their opinion he was entirely sane. Sheldon had no personal acquaintance with the prisoner, but he was an officer and patrolled the street where the wife lived; had frequently seen the prisoner lurking hi the vicinity apparently seeking an opportunity to meet her; had been present at the hearing at the magistrate’s and there witnessed his conduct. It will be noticed that the plea only alleged insanity on the one subject, to wit: his marital troubles'; it was on the occasion when seeking his wife and in her presence, that this monomania, if it existed at all, would make itself apparent. Under such circumstances the witness saw him and noticed no indication of insanity, but from what he had seen believed he was sane. This was competent testimony. It is not personal acquaintance alone that is a basis for the opinion of a nonexpert witness, but personal observation, also, under circumstances favorable to correct judgment: Wharton on Criminal'Evidence, sec. 417. There is no merit in these assignments and they are overruled.

The sixth assignment is not pressed in the argument, therefore we do not notice it, further than to say it is wholly groundless.

The judgment is affirmed and it is directed that the record be remitted to the court below that it may be carried into execution according to law.