Alberty v. State

There is no dispute as to the facts and circumstances of the homicide. The theory of the defense was excusable homicide on the ground of insanity, and the sole question presented on this appeal arises upon the refusal of the court to give the following instruction:

"You are instructed that the law presumes that every person is sane, and it is not necessary for the state to introduce evidence of sanity in the first instance. When, however, any evidence has been introduced tending to prove insanity of an accused, the burden is then upon the state to establish the fact of the accused's sanity, the same as any other material fact to be established by the state to warrant a conviction. If the testimony introduced in this case tending to prove that the defendant was insane at the time of the alleged killing of Willie Markham raises in your mind a reasonable doubt of his sanity, at the time of the alleged crime, then your verdict should be acquittal."

The court refused to give this instruction, and the defendant excepted. No objection was made or exception taken to the instructions given by the court.

The defendant's counsel contends that, under the rule declared by this court in the case of Adair v. State,6 Okla. Crim. 284, 118 P. 416, 44 L.R.A. (N.S.) 119, the refusal of the court to give the instruction requested constitutes reversible error. We think the contention is manifestly without merit.

Section 2094 of the Penal Code (Rev. Laws 1910.) provides:

"All persons are capable of committing crimes, except those belonging to the following classes: * * * Fourth: Lunatics, insane persons, and all persons of unsound mind, including persons temporarily or partially deprived of reason, upon proof that at the time of committing the act charged against them they were incapable of knowing its wrongfulness."

Under this provision the test of criminal responsibility for committing an act which is declared to be a crime is fixed at the point where the accused has the mental capacity to distinguish between right and wrong, as applied to the particular act, and to understand the nature and consequences of such act.

In the course of the opinion in the Adair case, supra, it is said:

"It is immaterial what standard scientists or medical experts may fix to determine, or by what rules they determine that a person is in a state of insanity; the accused under this provision of the law is a lunatic, or insane, or of unsound mind, or temporarily or partially deprived of reason, to such an extent as will excuse him from criminal responsibility, only when he is incapable of knowing the wrongfulness of the act committed and charged, and incapable of understanding the nature and consequences of such act, and this is a question of fact for the jury to determine under all the evidence in the case."

Section 5902, Procedure Criminal (Rev. Laws 1910), provides:

"Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable."

In the Adair case, it is said:

"Under the statute, the rule as to the burden of proof in a homicide case, when the defense of insanity is interposed, we hold to be this: The defendant is presumed in law to be sane and capable of knowing right from wrong as to the homicidal act, and to understand the nature and consequences of such act, and, unless the proof on the part of the prosecution is sufficient to raise a reasonable doubt of the defendant's sanity, the burden is upon the defendant, in the first instance, to overcome this presumption by introducing sufficient evidence to raise a reasonable doubt of his sanity when the act was committed. When he has done this, the prosecution, in order to convict, must prove the defendant's sanity beyond a reasonable doubt; and if, on a consideration of all the evidence, the jury entertain a reasonable doubt as to the defendant's sanity when the act was committed, he should be acquitted."

Upon a trial for murder, the presumption of innocence has been overcome when the commission of the homicide by the defendant is proven beyond a reasonable doubt; a presumption of guilt then obtains, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable. Thereupon, under this section of the statute (section 5902, supra), the burden of introducing sufficient evidence to raise a reasonable doubt of his guilt is upon the defendant. When he has done this, the burden of proof is upon the state to establish the guilt of the defendant beyond a reasonable doubt. Every defendant is presumed in law to be sane and capable of knowing right from wrong, and able to choose between them. This presumption, however, upon a trial for murder, is overcome whenever evidence is adduced sufficient to raise a reasonable doubt of the defendant's sanity at the time of the commission of the homicide. The law thereupon imposes upon the state the burden of establishing the sanity of the defendant the same as any other material fact necessary to warrant a conviction; that is, beyond a reasonable doubt.

In instruction No. 5 the court stated the defense of insanity, and quoted the language of the fourth subdivision of section 2094, supra.

Instructions Nos. 6 and 7, as given by the court, read as follows:

"VI. You are therefore instructed that, if you believe from the evidence in this case that the defendant shot and killed the deceased in manner and form as charged in the information, and you further believe that the defendant at the time of the killing was a lunatic, or an insane person, or was a person of unsound mind, or was temporarily or partially deprived of his reason, to such an extent that he was incapable of knowing the wrongfulness of his act, then it will be your duty to acquit the defendant, and you are instructed that, if you acquit the defendant on the ground of insanity, you should state that fact in your verdict.

"VII. You are further instructed in this connection that if, after a full and careful consideration of the whole case, you entertain a reasonable doubt as to the sanity of the defendant, at the time that he fired the fatal shot, you will then give him the benefit of such doubt and return a verdict of not guilty."

It will be observed that, as to the burden of proof, the requested instruction is when any evidence has been introducedtending to prove insanity. In the Adair case, it was held that by the express provision of the statute (section 5902, supra), when the commission of the homicide is admitted or proven, and the defense sought to be established is the insanity of the defendant, the legal presumption of sanity must be overcome byevidence which is sufficient to raise a reasonable doubt of thedefendant's sanity at the time of the killing. When that is done, the presumption of sanity ceases, and the burden of establishing the sanity of the defendant is upon the state, which is then required to prove his sanity as an element necessary to constitute the crime, and if, upon consideration of all the evidence, together with all the legal presumptions applicable to the case, the jury have a reasonable doubt as to whether the defendant, at the time of the commission of the homicide, was mentally competent to distinguish between right and wrong, or to understand the nature of the act he was committing, he must be acquitted.

The defense of insanity, or at least the existence of such mental disturbance or derangement of the mind as to render the defendant irresponsible in law for the act committed, rested largely, if not entirely, upon the testimony of his father that the defendant was subject to "spells," at which times he was very unruly, and would want to fight, and that his mother was afflicted in like manner, and that the defendant's mother's sister was insane at one time. It was not claimed that the defendant was subject to fits of epilepsy, or that he was a person of feeble mind. The evidence shows that the defendant was born and had lived all his life in that neighborhood; yet no testimony was introduced to show that he had ever acted irrationally.

The expert who testified did not confine his answer to the facts as stated in the hypothetical question, but stated generally "that, where there is a father and mother that were imbecile, demented, or insane, both of them, they would in all probability have insane offspring," and, "when for two generations before the offspring in question insanity has been fully demonstrated even on one side, the offspring will always be insane or imbecile or demented." The proof in this case did not establish or tend to establish any such facts.

It is proper to say that, after a careful examination of all the testimony in regard to the mental condition of the defendant at the time of the homicide, it does not fairly permit any other conclusion than that the shooting was the willful, deliberate, and premeditated act of a person who understood perfectly well the nature and consequences of his act.

The defense of irresponsibility, at best, presents a question of fact for the jury, and when they have settled that question without passion or prejudice, in accordance with the evidence, it is not the province of this court to disturb the verdict of the jury. We think that the charge to the jury was as favorable to the defense as the law permitted, and, for the reasons stated, the instruction requested was properly refused.

We have given the case that careful consideration which its importance and its solemn consequences to the defendant demand, and we see no occasion to interfere with the execution of the judgment of death. The defendant has had a fair trial, and has been convicted upon evidence which should satisfy the fairest mind of his guilt. The judgment is therefore affirmed.

It appears from the record that after the judgment was rendered and sentence of death was pronounced the law approved March 29, 1913, regulating the infliction of the death penalty, was passed. The statutes in force when the judgment was rendered provided:

Section 5967, Rev. Laws 1910:

"When judgment of death is rendered, the judge must sign and deliver to the sheriff of the county, a warrant duly attested by the clerk, under the seal of the court, stating the conviction and judgment, and appointing a day on which the judgment is to be executed, which must not be less than thirty nor more than sixty days from the time of the judgment."

Section 5981, Rev. Laws 1910:

"The punishment of death must be inflicted by hanging the defendant by the neck until he is dead; or his life may, under the direction of the Governor, and at the cost of the state, be taken by electricity if the court so orders."

Section 5982, Rev. Laws 1910:

"A judgment of death must be executed within the walls or yards of a jail of the county in which the conviction was had, or some convenient private place in the county. If there is no such jail or prison in the county in which the conviction was had, or if it becomes unfit or unsafe for the confinement of prisoners, or is destroyed by fire or otherwise, and the jail of another county has been legally designated for the confinement of the prisoners of the county in which the conviction was had, the judgment must be executed in manner as above."

By sections 1, 2, and 9 of chapter 113, Sess. Laws. 1913, it is provided:

"Section 1. The punishment of death must be inflicted by electrocution.

"Section 2. When judgment of death is rendered the judge must sign and deliver to the sheriff of the county a warrant duly attested by the clerk, under the seal of the court, stating the conviction and judgment and appointing a day on which the judgment is to be executed, which must not be less than sixty nor more than ninety days from the time of the judgment and must direct the sheriff to deliver the defendant within ten days from the time of judgment to the warden of the state prison at McAlester, in this state, for execution."

"Section 9. A judgment of death must be executed within the walls of the state prison at McAlester, Oklahoma, said prison to be designated by the court by which judgment is to be rendered."

The act of 1913 took effect June 15, 1913. It will be observed that it differs from the statute in force when the judgment and sentence of death was rendered in the following particulars: Chapter 113, Sess. Laws 1913, prescribes, "The punishment of death must be inflicted by electrocution," and substitutes the penitentiary for the county jail as the place where a judgment of death must be executed, and requires the court to appoint a day for the execution not less than 60, nor more than 90, days from the time of the judgment. The former statute required the court to appoint a day for the execution not less than 30, nor more than 60, days from the time of the judgment; the punishment of death to be by hanging, or by electrocution, as the trial court might order.

We are of opinion that the provisions of chapter 113, Sess. Laws 1913, applied to crimes committed prior to the time said act took effect, and are not repugnant to the provision of the federal Constitution declaring that no state shall pass an expost facto law. Article 1, sec. 10, Const. U.S. It did not create a new offense, nor require the infliction of a greater or more severe punishment than the law annexed to the crime when committed. The changes effected related solely to penal administration. The act changed the place and the officer for carrying out the sentence of death, and the extension of the time within which the execution may take place after sentence is a mitigation, and not an increase, of punishment. Our conclusion is based upon the holding of the Supreme Court of the United States in the case of Rooney v. North Dakota, 196 U.S. 319, 25 Sup. Ct. 264, 49 L. Ed. 494, 3 Ann. Cas. 76, wherein it was held that:

"A state statute changing the punishment for murder in the first degree by substituting close confinement in the penitentiary for not less than six nor more than nine months for confinement in the county jail for not less than three nor more than six months after judgment and before execution, and by substituting hanging within an inclosure at the penitentiary by the warden or his deputy for hanging by the sheriff within the yard of the county jail, is not ex post facto, and therefore unconstitutional, when applied to a person convicted before its enactment."

In the course of the opinion it is said:

"The objection that the later law required the execution of the sentence of death to take place within the limits of the penitentiary rather than in the county jail, as provided in the previous statute, is without merit. However material the place of confinement may be in case of some crimes not involving life, the place of execution, when the punishment is death, within the limits of the state, is of no particular consequence to the criminal. On such a matter he is not entitled to be heard."

In Henry v. State, ante, 136 P. 982, this court held that chapter 113, Sess. Laws 1913, was not an ex post facto law, within the inhibition of the state Constitution (section 15, Bill of Rights), when applied to a person convicted and sentenced before its enactment, where an appeal therefrom was pending at the time the act took effect.

The judgment and sentence in this case was rendered under the statute in force at the time of the homicide for which the defendant was convicted, and an appeal therefrom was pending when the act of 1913 took effect. It is apparent that the Legislature intended that the provisions of the act of 1913 should control in the rendition and execution of judgments of death in all cases wherein such judgments should be rendered after the act took effect, including cases where the murder had been committed prior thereto. However, no provision was made for cases pending on appeal where the judgment and sentence was death by hanging, if there should be an affirmance of such a judgment. In such cases we think the effect of the act of 1913 after final judgment should be determined by reference to the constitutional saving clause which provides:

"The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute." (Article 5, sec. 54; article 144, Williams'.)

Under this constitutional provision, the Legislature cannot intervene and vacate or modify the judgment of the courts either directly or indirectly by repeal or by amendment of a statute under which the judgment was rendered (Lilly v. State,7 Okla. Crim. 284, 123 P. 575), and on principle it would be an exercise of judicial, and not of legislative, power.

"Legislative action cannot be made to retroact upon past controversies, and to reverse decisions which the courts, in the exercise of their undoubted authority, have made; for this would not only be the exercise of judicial power, but it would be its exercise in the most objectionable and offensive form, since the Legislature would, in effect, sit as a court of review to which parties might appeal when dissatisfied with the rulings of the courts." (Cooley, Const. Lim. [7th Ed.] 136.)

The repeal or the amendment of a statute prescribing the punishment for an offense after final judgment has been pronounced and while an appeal therefrom is pending, will neither vacate nor modify such judgment, nor arrest the execution of the sentence when there is an affirmance of the judgment and sentence. This conclusion is to some extent opposed to that reached by this court in Henry v. State, supra; but, as the ground of our decision herein was not discussed nor at all considered in that case, it cannot be regarded as a binding precedent, and since Henry's sentence was by the chief executive commuted to life imprisonment, no right could be or was injured thereby.

As the day fixed for the execution of the judgment has passed, the cause is remanded to the trial court with directions to proceed under the provisions of Procedure Criminal (sections 5979 and 5980, Rev. Laws 1910), prescribing the procedure when a judgment of death has not been executed on the day appointed. When the defendant is brought before the court, if he should elect or request to have the judgment and sentence modified to conform to the provisions of the act of 1913, in order to avoid any possible question, the court is directed to modify said judgment in conformity to the provisions of said act. Otherwise the trial court is directed to fix another day for the execution of the judgment and sentence as set forth in the death warrant issued upon the judgment and sentence. The warden of the penitentiary is directed to deliver the defendant, Jesse Alberty, to the sheriff of Wagoner county, who is directed to safely keep the defendant in custody pending the proceedings in the trial court.

ARMSTRONG, P.J., and FURMAN, J., concur.