Atkins v. State

• Decision Date: 23 November 1907
• Citation: 105 S.W. 353,119 Tenn. 458
• Parties: ATKINS v. STATE.
• Court: Tennessee Supreme Court

105 S.W. 353

119 Tenn. 458

ATKINS v. STATE.

Supreme Court of Tennessee.

November 23, 1907

Appeal from Criminal Court, Knox County; D. D. Anderson, Judge.

Charles A. Atkins was convicted of murder in the second degree, and he appeals. Affirmed.

W. L Welcker, John C. Houk, Will D. Wright, N. N. Osborne, and A Y. Burrows, for plaintiff in error.

Attorney General Cates, for the State.

NEIL J.

The plaintiff in error was indicted in the criminal court of Knox county at the January term, 1906, for the murder of one Edith Eckel, and was convicted and sentenced to 10 years' confinement in the state penitentiary. From this judgment after his motion for a new trial was overruled, he appealed to this court, and has here assigned errors.

The errors assigned are wholly upon the action of the court in admitting certain testimony objected to in the court below and upon certain portions of the charge. In order, however, to a proper understanding of the points thus arising, it will be necessary to give a brief statement of the facts and of the defenses interposed.

On the night of November 1, 1905, shortly before 11 o'clock, the plaintiff in error called at the house of the deceased, and while there began dancing noisily in the hall, into which the parlor opened. In the parlor there were two other women sitting by the fire, and the deceased was sitting on a sofa in the corner of the room talking to one Charles Stephens.

The deceased, having her attention attracted to the noise which the plaintiff in error was making in the hall, called out to him to desist, or, to use her expression, "to cut out that dancing." Plaintiff in error replied, "I will cut it out in the hall and bring it in there." Thereupon he entered the parlor and began dancing in front of the fire. Then the deceased got up from her seat, and advanced near to the plaintiff in error, and started to put her hand on his shoulder. He thereupon fired into her breast with a derringer pistol and killed her. She had nothing in her hands at the time, except a bunch of keys and a silver dollar. Plaintiff was very drunk at the time, but immediately after shooting the deceased he left the house, shutting the front door after him. He soon afterwards appeared at the Cumberland Hotel, and left his pistol with the clerk to keep for him, telling him that he had shot a woman.

There was evidence introduced on the trial to the effect that the plaintiff in error had certain physical defects which indicated that he was a degenerate, also that his father was a hard drinker before the plaintiff in error's birth, and afterwards for a series of years; that plaintiff in error, for some 10 or 12 years immediately preceding the homicide, had been addicted to strong drink, including whisky, brandy, absinthe, and every other kind of drink sold in saloons; that he had many times suffered from delirium tremens, and for two years had been affected with a chronic disease which deeply impaired his nervous system; that on the night in question he was suffering from a recent surgical operation which gave him great pain. There was also evidence that he suffered greatly from the loss of sleep, and from insufficient nourishment, caused by his dissipated habits. On the basis of these facts, hypothetical questions were submitted to several physicians at Knoxville touching his sanity. These physicians all testified, on the hypothesis stated on the questions propounded to them, that the man was irresponsible at the time the act was committed. On the other hand, the state introduced testimony to the effect that the plaintiff in error was a civil engineer, and was in the employ of the Southern Railway Company as such, a few weeks before the homicide, and that he had a responsible position, having two men under his direction. There was also evidence to the effect that whatever may have been his state of degeneracy, or whatever may have been the degree of deterioration which he had reached as the result of the vicious life he had led, he knew right from wrong when he was not drinking, and that it was the effect of intoxicating liquors acting upon his enfeebled organization that brought him to an unreasoning state, when he was under the influence of these potations. The state also introduced two nonexpert witnesses to testify as to their opinion of the plaintiff in error's sanity, from personal acquaintance and long observation of him. The introduction of these witnesses is the first ground of objection by the plaintiff in error.

The first of these witnesses was A. A. Goolsbee. This witness testified that in the month of November, 1905, he was a deputy sheriff of Knox county, and prior to that time he had been assistant chief of police; that at and before the homicide he had long known the plaintiff in error, and was accustomed to seeing him every day or so, and would sometimes have a talk with him; that he had known him for 15 years. After he had stated these facts he was asked: "From your observation, and from your talks with him, state whether or not, on November 1, 1905, he was a sane man or an insane man." This was objected to, on the ground that the witness was not an expert, and could not express any opinion until he had given facts on which to base it. The objection was overruled. The question was then repeated in the following form: "State whether or not, from your observation of Charles Atkins, over the time you have mentioned, your talks with him, and your acquaintance with him, up to November 1, 1905, Charles Atkins was a sane man or an insane man." The same objection was made and overruled. The witness then answered: "Well, it is a question. I have seen Charley under the influence of liquor, or under the influence of an opiate of some kind, I don't know which. I have seen him when he was acting under the influence of an opiate, when I didn't smell whisky on him, and outside of that time I never seen anything wrong with him--always supposed him to be a boy of good sense." At this point counsel for plaintiff in error asked that the evidence be excluded, because it consisted of a mere opinion of the witness, and was not based on facts first detailed to the jury. The objection was overruled. The examination then proceeded as follows:

"Q. State whether or not, in your opinion, at this time, he was sane or insane. A. At what time? Q. That is, in November, 1905. A. Why, I considered him sane. (Counsel for Plaintiff in Error: We object to that, because he is not qualified as an expert, nor instanced his manner, conduct, and conversation before giving his opinion as a nonexpert. No ruling.) Q. Did you not talk to him prior to this time? A. Well, I lived by him three or four years down here. Q. Would you, or not, meet him on the streets here in the city? A. Yes, sir; the same as I would other men. Q. Well, what would you see him doing? A. I would see him coming from work, and sitting on the porch, reading the papers, just as any ordinary man would

do. Q. Do you remember any conversation you had with him at any time? A. Nothing in particular, no more than I would any other man that I pass and repass. Q. Did you, or not, see him after he was in jail, charged with this killing? A. I don't think I saw him in jail. I saw him after he was out. Q. From your talks with him, and your observations of him, what you saw him doing as you have stated, state whether, in your judgment, he was a sane or insane man. (Counsel for Prisoner: We object to the question, because he has not in any manner qualified himself to answer same. Objection overruled.) A. I consider him sane when he wasn't drunk."

The next witness on the subject whose testimony was objected to was Harmon Kreis, the sheriff of the county. This witness testified that he first became acquainted with the plaintiff in error when he was brought to the jail for confinement just after the homicide; that he saw him every day during the time he was incarcerated, running over a period of two or three months--in fact, about three months; that he had conversations with him, and had an opportunity of observing him; that plaintiff in error read a good deal; that he was sick, and that he allowed him to eat at his (the sheriff's) table, for two or three weeks; that while at table he would talk with the plaintiff in error, but never about his case; that he talked with him upon general subjects. After having made these statements, the witness was asked the following questions: "Q. Now, sheriff, state whether or not, after having observed his actions in jail, during the period you have mentioned, and having had the talks with him you have mentioned, whether or not, in your judgment, at that time, he was a sane of an insane man. (Counsel for the Prisoner: We object to the question as incompetent. He has detailed no conduct, conversation, etc., upon which to give an opinion. Objection overruled.) A. Well, I wouldn't take him for an insane man. He did not act like one to me, though I am not an expert." On cross-examination the witness testified that he saw the plaintiff in error the next morning after the homicide, and perhaps had some conversation with him, but does not remember anything that was said. He was then asked if he could repeat any conversation he had ever had with the plaintiff in error after he was placed in jail, and he answered that he could not.

Upon the question suggested, by the exceptions above noted, there is a great array of authority. We shall, however, refer to only two text-writers, and to our own cases.

In Elliott on Evidence, vol. 1, § 681, it is said: "There are a few decisions to the effect that an ordinary witness cannot give an opinion as to the sanity or insanity of a person; but the overwhelming weight of authority is to the effect that he may...