Kwosek v. State ( 1960 )

Brown, J.

The first assignment of error is that the trial court committed prejudicial error in refusing to permit the defendant to cross-examine the psychiatrist employed by the state as to his employment by the state before seeing or examining the defendant. Plaintiff in error made an offer of proof that the witness was retained by the state before the witness had seen or examined Kwosek. The offer contained nothing which would support even an inference that the doctor had agreed before examining Kwosek to support the state’s contention that Kwosek was sane when he killed his wife. Unless there is some advance authority given the doctor by the state, one does not see how the psychiatrist could obtain access to Kwosek or examine him or reach any conclusion. The mere time of employment, which is all the offer of proof contains, is immaterial. We find no error in excluding the cross-examination on that point.

The second assignment is that the court permitted the state to put in evidence the written confession of December 6, 1957, and also the “substantially identical” oral confession of December 9th.

In both confessions Kwoselc’s shooting was deliberate. In that respect the confessions were substantially identical. But there were many variations in them concerning Kwosek’s activities the day before. For instance, in one he said he borrowed the gun on December 5th and kept it in the car until late in the evening when he took the gun into the bedroom. In the other he said he had owned the gun since he bought it in 1946 and kept it in the attic until he and his wife had risen on December 6th. Then, he said, he climbed up on a chair into the attic and brought the gun down just before he used it.

Plaintiff in error contends that the jury became prejudiced by hearing twice what his counsel calls “the gory details.” We think no error was committed. It is largely a matter of discretion for the trial court to determine how many witnesses may testify to the same event, though the event involves unpleasant details. When the evidence becomes merely cumulative, the trial court may refuse to hear additional witnesses on the same subject. Even if the two confessions were identical in every respect, we would find that there was no abuse of discretion in admitting the evidence concerning them, the confessions being made at different times and one being oral and the other by written, signed statement.

For the time being, we postpone consideration of the next assignment of error. The one following that is:

“4. Did the trial court commit prejudicial error in permitting Dr. Robert L. MacCornack, Jr., to testify, over objection, as to his observations of defendant at approximately 6:30 p. m. on the day of the shooting, which was at the time the doctor was examining and treating the defendant?”

The material part of the statute on which the objection is based is:

“325.21 Communications to doctoRS. No physician or surgeon shall be permitted to disclose any information he may have acquired in attending any patient in a professional character, necessary to enable him professionally to serve such patient, except only (1) in trials for homicide when the disclosure relates directly to the fact or immediate circumstances of the homicide, (2) in all lunacy inquiries, (3) . . . , (4) with the express consent of the patient, . . .”

The witness was a physician called by the sheriff to treat Kwosek. The state called the witness to testify to information he acquired in attending the patient in a professional capacity. Kwosek’s counsel made timely objection that:

“I am going to object to any testimony relative to the observation which the doctor made on the basis it is a violation of the patient-physician privilege. We are willing to waive it as to what the doctor administered, but object to any testimony as to his conclusions or observations.”

The trial court overruled the objection. Dr. MacCornack testified to the patient’s condition, the treatment, and the quieting effect of the drug given. None of the testimony relates to the fact or the immediate circumstances of the homicide (statutory exception (1)). While it may be argued that the defense based on insanity is a lunacy inquiry, and as such is an exception to the privileged character of the doctor’s testimony (statutory exception (2)), we doubt that this trial is a lunacy inquiry such as the statute means. Counsel did not refer in his brief to that exception, and we do not decide that point. We ground our conclusion that if there was error in admitting the doctor’s testimony no prejudice to Kwosek came from it. Elis counsel submits:

“The prejudicial effect in the admission of the evidence is that the testimony of the physician lends credence to the theory of the state, particularly on the insanity issue.”

Counsel does not print any part of the doctor’s testimony, but we have read all of it in the record. We do not find anything there to substantiate counsel’s contention. Rather, the convulsive shaking which the doctor observed seems to us to favor the defense of plaintiff in error. Whether it did or not, lay witnesses observed and testified to the same thing and there is no dispute in them whereby testimony by the physician might overcome contrary testimony by other witnesses.

Kwosek’s next contention is that the evidence does not support the conviction of murder in the first degree. We have read not only the appendix of plaintiff in error but the complete record and find the evidence to be overwhelming in support of the verdict.

We revert to an assignment of error the consideration of which we postponed, supra. The issue as stated by plaintiff in error is:

“3. Did the trial court commit prejudicial error in giving conflicting instructions to the jury on the law applicable to insanity as a defense?”

In charging the jury the court instructed three times on the defense of insanity, viz.: (1) If the jury has a reasonable doubt as to defendant’s sanity at the time of the shooting then it is the jury’s duty to find him not guilty because insane at the time of the commission of the alleged offense; (2) if, on the other hand, you fail to find the defendant insane, or if there remains any reasonable doubt in your minds of defendant’s sanity, etc., then you cannot find the defendant not guilty because insane; (3) if, after the most careful and conscientious consideration of all the evidence, there remains in the jury’s mind any reasonable doubt as to the sanity of the defendant at the time of the commission of the offense, then you will find that he was insane, otherwise you will find that he was sane. In the event that you find the defendant was insane at the time of the offense then you will return the verdict not guilty because insane.

Obviously, the instruction which we designated (2) was erroneous. We cannot assume that it was a reporter’s error, not heard by the jury rather than a slip of the tongue by the trial judge, which the jury did hear and pay attention to. We have recently treated the subject of an erroneous instruction in combination with a correct one in Ackley v. Farmers Mut. Automobile Ins. Co. (1956), 273 Wis. 422, 425, 78 N. W. (2d) 744. There we said:

“. . . the confusion resulting from a clearly erroneous instruction is not cured by injecting a proper rule, especially when not given in such a manner as could be expected to correct a mistaken impression. An erroneous instruction on a given subject is not cured by the fact that the law is correctly stated elsewhere, for it cannot be known whether the jury have been guided by the correct rule or by the erroneous one. At no time in the instructions given to the jury did the court specifically or necessarily withdraw or qualify the instruction in question; and it is the rule that this is reversible error. Yerkes v. Northern Pacific R. Co. 112 Wis. 184, 191, 88 N. W. 33. In Schmidt v. State, 124 Wis. 516, 519, 102 N. W. 1071, it was said: ‘An erroneous instruction is not cured, nor the presumption of prejudice therefrom overcome, by a correct statement of the law on the same subject elsewhere in the charge.’ ”

Ackley was a civil case. How much more necessary it is to observe that sound rule in a criminal and particularly in a capital case! We consider that there was prejudicial error in the charge to the jury and a new trial is required.

Finally, plaintiff in error asks us in the name of the interests of justice to change the definition of legal insanity. The definition for many, many years has been that which the trial court gave in its instructions to the jury:

“The term insanity in the law means such an abnormal condition of the mind from any cause, as to render the afflicted one incapable from distinguishing between right and wrong in the given instance and so rendering him unconscious of the punishable character of his act.

“A person is not immune from punishment for a wrongful act if he has, at the time of perpetrating it, capacity to distinguish between right and wrong with respect thereto, if he has such capacity and is conscious of the wrongfulness of his conduct.”

This is generally referred to as the M’Naghten rule.

Plaintiff in error did not ask any instruction on the subject of legal insanity but now asks us to disavow the M’Naghten definition and substitute the so-called Durham definition, Durham v. United States (1954), 94 U. S. App. D. C. 228, 241, 214 Fed. (2d) 862, 874, 45 A. L. R. (2d) 1430. That rule says:

“It is simply that an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.”

We do not choose to make the change. In addition, we consider that the evidence is such that the use of the Durham rule would not change the result of this trial.

By the Court. — Judgment reversed. Cause remanded with directions for a new trial.