Appeal from Criminal Court, Buchanan County; Thomas F. Ryan, Judge.
Norman Herring and J. F. Baldwin were convicted of manslaughter in the fourth degree, and appeal. Affirmed.
Defendants were charged with murder in the second degree and convicted of manslaughter in the fourth degree. The jury disagreed as to the punishment. The court sentenced Herring to 2 years in the penitentiary
and Baldwin to pay a fine of $500. They have appealed.
They were both employed as attendants in ward 3 of Hospital No. 2 for the insane at St. Joseph. They both had several years' experience in such employment, and the evidence shows that they had been previously careful in such work. Ward 3 was one in which violent patients were confined, but other patients were kept there to do certain parts of the work necessary in caring for the patients. Joshua Wallace and George Young were two of the most dangerous patients in the ward. About December 15, 1904, Wallace had bitten off a large portion of one of the ears of defendant Baldwin. He had a reputation for biting. He was about 28 years old. Both he and Young were above the average in size and strength. Wallace had worn "restraints" for a considerable period of time, but they had been removed several days prior to the alleged offense. Those restraints were leather straps around his body and around his wrists.
Patrick J. Fitzpatrick, one of the patients, testified for the state as follows:
"A. Well, that morning before we went to breakfast Wallace was going around mumbling. He was a vicious patient; a man that would bite. He was going around mumbling over them coming out. He was not a crazy man; he was just simply mad, acted like he was mad, and foamed at the mouth. He was going around mumbling and he kept that up before breakfast. After breakfast he got worse. I mean he acted like he was going to do something. Murphy was at the back end of the hall. * * * Q. Who is Murphy? A. He is a patient on ward 3. Murphy kind of went toward him, I was in the middle of the hall. I thought I would go back and help Murphy quiet him down. I knew the attendants were at breakfast, and when I got back there the attendants came back behind me, and when I saw them I thought there was plenty to handle him and I went back to my work, and they had led him off the hall. Q. Who led him off the hall? A. Mr. Herring and Mr. Baldwin. I think Mr. Smith came back there. Q. Tell the jury whether or not Murphy had any fight with Wallace. A. None whatever. They were just talking. Murphy was trying to quiet him so they would not hit one another. Q. You say Mr. Herring and Mr. Baldwin led the patient Wallace off the hall? A. They caught hold of him right at the entrance of the hall. It occurred right along there, and they got up to the entrance and took hold of him by the arms and led him out just like this, one on each side like this. Then I went back to my work. Q. Do you know how Wallace went around to make assaults upon patients that he was angry with or on attendants? A. He went like a mad man. Q. Did he go with his mouth open? A. Yes; his mouth was open and he was frothing."
Thomas J. Murphy, another patient, testified:
"Q. I wish you would turn to these gentlemen and tell what occurred between Mr. Wallace and Mr. Herring and Mr. Baldwin on this Sunday morning that Mr. Wallace was killed. A. For the information of the jury, the ward is ward 3. It was just about breakfast time, after the patients had had their breakfast and the attendants, the gentlemen mentioned, had just about finished their breakfast, and Mr. Wallace, who was running a rubber, there were about 13 or 14 other men running rubbers, and they kept passing by where I was stationed. I was stationed at the table which belonged to these gentlemen mentioned, these attendants, and where they kept their property in the table and their reports. I watched it while they were out. On this last turn around Mr. Wallace stopped where I stood and made the remark, `Those men didn't get all that was coming to them; didn't get enough;' and when he made the remark I told him he had to keep still and go on with the rubbing. Q. It was your business to help with the keeping of the patients? A. Yes; and to call their attention to them if they tried to make trouble. By calling attention to a patient always some attendant responds, and we work that way. Mr. Herring and Mr. Baldwin had about that time started out of the dining room and I walked along with Wallace so he would keep on with the rubber, so I met them coming on and told them what Mr. Wallace had said in regard to themselves, and they started to quiet Mr. Wallace the way they had before; that is, take him away so that he would not make any trouble; that is, take him to the anteroom. Q. What anteroom? A. There is a little anteroom that belongs to the ward, is a part of the ward. Q. Is that near the bathroom? A. Yes; from the anteroom you pass into the toilet."
He further testified that the defendants took hold of Wallace and led him to the door and out of sight of the witness, who saw nothing that occurred between them after that.
Defendant Baldwin testified that when he went into the hall Murphy told him that Wallace had said, "They didn't get enough and were going to get some more." He further testified as follows:
"A. We took him by the arms and started to bring him in here, and when we got here he resisted and jerked away and started in this doorway and started to fight. Mr. Herring was ahead of me, and so I couldn't see just what happened. Mr. Herring either shoved him or struck him and he fell kind of staggering backwards and fell back in here, and with his head between the radiator and the bathtub, and Mr. Crain, another patient — Q. Where was Crain? A. He was inside the bathroom drawing a bucket of water with a little piece of hose attached to the faucet where he was drawing the water into the bucket. Q. This is the rubber hose that has been introduced in evidence? A. Yes, sir. Mr. Herring was ahead, and that is the first thing I seen, the rubber hose. I grabbed that off the faucet. I think Mr. Crain grabbed the right arm and Mr. Herring the left arm, and as he came up I struck him twice with the hose just across the neck, and as I struck him he kicked me in the stomach and back to where the washbasin was, and Mr. Young, another patient, was in the stoolroom there, or had been. Q. What did Mr. Young do? A. He came out, and just as he kicked me back Mr. Young grabbed him by the feet and jerked his feet out, and he fell in here on his right side and turned some way so he struck his right side. Q. Do you know what he did strike as a matter of fact? A. I don't know. It might have been the radiator. I presume it was the radiator.
"Mr. McDaniels: I object to his presumption.
"The Court: Don't state your presumption. State what you saw. Don't state what you think. A. Well, it looked to me like he struck the radiator or the floor in front of him. I think it was the radiator. That is what it looked to me like. And immediately after he struck him Young jumped out on him with his feet and he stood with one foot here and he stamped
him five or six times before either of us could get to him; it was done right quick; and we pulled Young off; Herring and I did."
He testified that neither he nor Herring kicked Wallace. Defendant Herring testified that when he got near where Wallace was Fitzpatrick and Murphy told him that Wallace had made threats; and, as to the difficulty, he testified:
"I undertook to see what was the difficulty between these patients, and as soon as I saw there was apt to be some disturbance with him, we made an effort to get him away from these two benches of infirm patients for fear he would hurt some of them, and we naturally crowded him to the back through this back hall, and when we got through he breaks loose and backs into this door and into the bathroom. He stopped right in the door facing us, so only one man could approach him at a time. He puts up a defense by striking at me five or six times. Q. Did he hit you? A. No; I was not in reach of him at the time. He then made a violent strike and started to fall into me, and, to keep him from biting me as he intended to do, I gave him a shove with my hand against the left side of his face and he staggered back across the bathroom. Q. Did you strike him? A. No; I shoved him, and he staggered back and fell on his head and shoulders with his head between the bathtub and the radiator. That is a distance of about ten feet, I suppose. Q. What did you shove him for? A. I shoved him to keep him from clinching me and biting me. That is what I expected him to do. When he went down he didn't lay there; he started to get up, and as he made an effort to get up Everett Crain, a patient, who was standing inside the bathroom door, he takes hold of one of patient Wallace's arms — I believe it was his right arm — and I was on the other side. I believe I took hold of his left arm, and as he starts to get up Mr. Baldwin — The first thing he sees is a piece of hose connected on the pipe where Mr. Crain was working. He takes the hose off — I don't know whether to use it himself or to keep the other patients from using it — and as Mr. Wallace starts to get up he strikes him a couple of times across the head. He stepped back and Wallace kicked him in the stomach and he kicked him back nearly to the lavatory on that side. George Young, another patient, was standing in this door that connected the water-closet with the bathroom, but at the time that Mr. Baldwin hit him and Mr. Wallace kicked Mr. Baldwin Young had shifted his position and he hit him in such a way that Mr. Wallace falls loose from myself and Mr. Crain, his head falling towards the radiator. I am not positive that he struck anything, but I know his head struck the floor and...
