6 S.W. 102 (Mo. 1887), State v. Bryant

Citation:6 S.W. 102, 93 Mo. 273
Opinion Judge:Sherwood, J.
Party Name:The State v. Bryant, Appellant
Attorney:N. T. Cherry, G. K. Bates, U. F. Givens and McKee & Jayne for appellant. B. G. Boone, Attorney General, and T. L. Montgomery for the state.
Judge Panel:Sherwood, J. Norton, C. J. Judges Ray, Black, and Brace concur, and Judge Sherwood dissents. Judge Sherwood, dissenting.
Case Date:November 28, 1887
Court:Supreme Court of Missouri
 
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Page 102

6 S.W. 102 (Mo. 1887)

93 Mo. 273

The State

v.

Bryant, Appellant

Supreme Court of Missouri

November 28, 1887

Appeal from Clarke Circuit Court. -- Hon. B. E. Turner, Judge.

The instructions given by the court, and referred to in the opinion, were as follows:

"1. The jury are instructed that the defendant is charged with murder in the first degree, and that, under the evidence in the case, it is their duty to find him guilty of murder in the first degree or to acquit him."

"6. As a defence to this prosecution, the defendant, by his counsel, has interposed the plea of insanity; that is, that the act which he is alleged to have committed is one for which he cannot be held criminally responsible, because, at the time of the commission, he was insane."

"7. The term insanity, as used in the defence, means such a perverted and deranged condition of the mental and moral faculties as renders a person incapable of distinguishing between right and wrong, and makes him unconscious, at times, of the nature of the act he is about to commit."

"8. If the evidence shows, to the reasonable satisfaction of the jury, that the defendant was so insane, at the time of the killing, then, in such case, he is not, under the law, guilty, and the jury should acquit him on the ground of insanity."

"9. The law presumes every person to be of sound mind until the contrary is shown, and when insanity is interposed as a defence, the fact of the existence of such insanity, at the time of the commission of the offence, must be established, by the evidence, to the reasonable satisfaction of the jury, and the burden of proving this fact rests on the defendant."

"10. Although the jury may believe, from the evidence, that defendant did kill Lee, yet, if they further find that, at the time he did so, he was in such an insane condition of mind that he could not distinguish between right and wrong, in reference to such killing, then such killing was not malicious, and the jury should acquit him of the offence charged on the grounds of insanity."

"11. To establish insanity, positive or direct testimony is not required. Circumstantial evidence, which reasonably satisfies the minds of the jury that the defendant, at the time the alleged shooting was done, was incapable of distinguishing between right and wrong, or of comprehending the nature of the act, will be sufficient."

"12. If the jury shall believe, from the evidence, that defendant, at the time of the killing, was laboring under a fit of temporary insanity, which was then and there the result of the immediate use of intoxicating liquors, then, in such case, there is no mitigation or excuse for such killing. But if the evidence shows that the defendant was insane, the fact that he may have also been drunk, if the jury believe, from the evidence, that he was drunk, will not make him criminally liable. Under the law, drunkenness will not excuse crime or mitigate it."

"13. Although the evidence may show that defendant was weak in mind, and partially insane, still the defendant will be criminally responsible for the killing, if it shall appear, from the evidence, that he knew the right from the wrong, in reference to such killing, at the time of the killing."

"14. There is no evidence that shows such conduct on the part of Lee toward defendant's wife as would excuse, or mitigate, the killing. But, if the jury shall believe, from the evidence, that defendant, at the time of the killing, was so insane, on account of jealousy of Lee, as not to be able to distinguish right from wrong, in reference to the act, then the jury shall acquit."

Affirmed.

N. T. Cherry, G. K. Bates, U. F. Givens and McKee & Jayne for appellant.

(1) The court erred in refusing to grant defendant a continuance. R. S., secs. 1883, 1884; McLane v. Harris, 1 Mo. 700; Moore v. McCullough, 6 Mo. 444; Tunstall v. Hamilton, 8 Mo. 500; Mackey v. State, 12 Mo. 492; Kelley v. Saunders, 35 Mo. 200. (2) The court erred in accepting William Wickel, Peter Hancock, Joseph Vandolah, John Shuler, Price Davis, C. J. Duty, Chas. Hull, Wm. Ballard, and Horace Sherwood as qualified jurors, and retaining them, or either of them, on the panel of forty, out of which the jury were selected to try the cause. State v. Culler, 82 Mo. 623. (3) The court erred in excluding from the jury that part of an application for a continuance read as the evidence of John Barbour, an absent witness, at the former trial. R. S., sec. 1886; Carroll v. Paul, 19 Mo. 102. (4) The court erred in permitting the witness, Asa S. Mason, as well as the witnesses, Charles Henshaw, Thos. Curts, and Henry Gredell, or either of them, to express or state an opinion, to the jury, as to the sanity or insanity of defendant. Baldwin v. State, 12 Mo. 223; State v. Klinger, 46 Mo. 224; Cramer v. Peters, 63 Mo. 429. (5) The court erred in admitting the evidence of the witness, William Cooey. State v. Creason, 38 Mo. 372; State v. White, 35 Mo. 500; Harrison v. Barker, 14 N.W. 541; Simpson v. Armstrong, 30 N.W. 941. (6) The court erred in giving instructions for the state and refusing same for defendant.

B. G. Boone, Attorney General, and T. L. Montgomery for the state.

(1) An affidavit for a continuance that does not show due diligence on the part of the defendant to secure material testimony should be overruled. R. S., sec. 1884; State v. Miller, 67 Mo. 607; State v. Hatfield, 72 Mo. 518; State v. Underwood, 75 Mo. 230. (2) An affidavit for continuance fails to comply with the statute (section 1884) when it does not state that affiant believes that the testimony set forth in the application is true, and that the same facts cannot be proved by any other witnesses whose testimony could be as readily procured. State v. Underwood, 76 Mo. 639; State v. Henson, 81 Mo. 384; State v. Lett, 85 Mo. 52. (3) An application for a continuance is addressed to the sound discretion of the trial court, and unless it appears that this discretion has been exercised oppressively, to defendant's prejudice, this court will not reverse. State v. Jewell, 90 Mo. 467; State v. Wilson, 85 Mo. 140; State v. Fox, 79 Mo. 109; State v. Ward, 74 Mo. 255, and cas. cit.; State v. Williams, 69 Mo. 110. (4) One who has formed an opinion as to the guilt or innocence of the accused, from newspaper reports, is not thereby disqualified from serving as a juror on the trial of the cause. R. S., sec. 1879; State v. Wilson, 85 Mo. 134; State v. Hopkirk, 84 Mo. 278; State v. Burgess, 78 Mo. 234; State v. Walton, 74 Mo. 270; State v. Greenwade, 72 Mo. 298; State v. Core, 71 Mo. 288. (5) Where the defence of insanity is interposed, persons, though not experts, who have had the opportunity of observing the defendant, may be asked their opinion as to his sanity or insanity. Their answers must be confined to their own observation. State v. Baldwin, 12 Mo. 223; State v. Klinger, 46 Mo. 224; Crowe, Adm'r, v. Peters, 63 Mo. 434; Moore v. Moore, 67 Mo. 192; Appleby v. Brock, 76 Mo. 314, and cas. cit. (6) Under these rulings questions asked non-expert witnesses for the state were not improper. (7) The instructions given by the court were correct and complete, covering every phase of the case, and none other were required. The instructions asked by defendant were, therefore, properly refused.

Sherwood, J. Norton, C. J. Judges Ray, Black, and Brace concur, and Judge Sherwood dissents. Judge Sherwood, dissenting.

OPINION

Page 103

[93 Mo. 277] Sherwood, J.

Tried on a charge of murder in the first degree, the defendant interposed the plea of insanity, resulting in a hung jury on the first trial, and on the second trial, in a verdict of guilty in manner and form as charged; judgment and sentence accordingly. Appealing from this judgment, the defendant assigns as error the following: (1) The refusal to grant the defendant a continuance. (2) The accepting of certain persons as jurors, and the retaining of them on the panel of forty, from which the trial jury were selected. (3) The exclusion of certain evidence. (4) The admission of certain evidence. (5) The giving of certain instructions on behalf of the state and the refusal to give certain instructions on behalf of the defendant. Of these assignments of error in their order:

Page 104

[93 Mo. 278] I. The application for a continuance will now be discussed. The homicide occurred February 8, 1886; at the ensuing April term, the mistrial occurred, and then the cause went over to the October term next thereafter, when the trial now in question took place, beginning on the eighth of October.

Section 1884 of our statute, in relation to such applications in criminal causes, is as follows:

"A motion to continue a cause, on the part of the defendant, on account of the absence of evidence, must be supported by the oath or affidavit of the defendant, or some reputable person in his behalf, showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it, and where the evidence may be; and if it is for an absent witness, the affidavit must give his name, and show where he resides or may be, and the probability of procuring his testimony, and within what time, and what facts he believes the witness will prove, and that he believes them to be true, and that he is unable to prove such facts by any other witness whose testimony can be as readily procured, and that the witness is not absent by the connivance, procurement, or consent of the defendant, and what diligence, if any, has been used in the premises by the defendant, and that the application is not made for vexation or delay, merely, but to obtain substantial justice in the trial of the cause."

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