Ballard v. State

• Citation: 28 N.W. 271,19 Neb. 609
• Parties: THOMAS BALLARD, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Decision Date: 26 May 1886
• Court: Nebraska Supreme Court

28 N.W. 271

19 Neb. 609

THOMAS BALLARD, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

May 26, 1886

ERROR to the district court for Douglas county. Tried below before NEVILLE, J.

REVERSED AND REMANDED.

O'Brien & O'Brien and Charles P. Burkett (with whom were Scott & Scott), for plaintiff in error.

William Leese, Attorney General, and Lee S. Estelle, District Attorney, for the State.

OPINION

REESE, J.

Plaintiff was convicted of murder in the first degree and sentenced to be hanged. He alleges error in this court, and, under the provisions of the constitution of the state, the execution of the sentence is suspended by act of law until the case is reviewed by the supreme court.

Before entering upon the discussion of the questions presented by this record we deem it proper to say that the brief of counsel for plaintiff in error contains an unwarranted and unjust attack upon the learned and impartial judge who presided at the trial in the district court. We have examined the record carefully from the beginning to the end for some evidence of the bias and prejudice against the prisoner so often and persistently imputed to the trial judge, and can find no trace whatever of any proof of such feeling or action on his part. So far as the record discloses, it is absolutely wanting. Such statements and insinuations, unless founded upon the record, can be of no possible benefit to a cause, and no excuse can be found for their use. It often happens that in the hurry and excitement of a trial in which great interest is taken, and where little, if any, time can be taken for reflection and investigation by the judge, where decisions must be made upon a moment's notice, erroneous rulings may be made by which the party on trial is prejudiced. Such has been the history of courts ever since their establishment. The most profound judges have erred, but such errors are not imputed to them as any evidence of a want of impartiality or of the existence of bias. It is true that there are occasional exceptions to the rule, but they are rare, and evidence of the fact can usually be found in the records made. While errors may be found in this case prejudicial to plaintiff in error, yet none of them suggest the existence of anything upon the part of the trial judge but a desire to give to plaintiff in error a fair and impartial trial. Indeed, it affirmatively appears that all reasonable efforts were made in that direction, and the unusual incident is shown to have occurred of the court adjourning at an early hour in order that the attorneys conducting the defense might take time to prepare proper questions to propound to a witness, a thing they were unable to do while the trial progressed.

The testimony adduced on the part of the state leaves no doubt of the fact of the killing by the accused. It was testified to clearly and unequivocally by a number of witnesses, and not denied or disputed by any witness on the part of the defense. The defense interposed was that of insanity. This insanity, it is claimed, was produced by the long continued use of intoxicating liquors, and a condition of intoxication at the time of the killing. The form of insanity known as dipsomania was principally relied on. The testimony shows that plaintiff in error had, for a number of years, been addicted to the use of intoxicating liquors which resulted occasionally in prolonged "sprees" of drunkenness. But these debauches were not of very frequent occurrence; many months sometimes intervening between them. During most of the time--nearly all--he was able to transact ordinary business, and just prior to the killing was employed as night clerk and "runner" for the St. James Hotel in the city of Omaha, a part of his duties being to be at the railroad depots on the arrival of trains and solicit customers for the hotel; and at times attending bar in a saloon maintained in the hotel with which he was connected. The deceased, Henry Verpoorten, was also employed in the same hotel, and the day before the commission of the homicide plaintiff in error was discharged and Verpoorten retained. On that day, which was Sunday, plaintiff in error showed indications of being somewhat under the influence of liquor, as some of the witnesses thought, and late in the afternoon went into the saloon where Verpoorten was employed and shot him, Verpoorten dying instantly. As a new trial must be had, it is not deemed proper to discuss the testimony or express any opinion upon the facts not conceded.

After the testimony for the state had been introduced a number of witnesses were examined who testified to their acquaintance with plaintiff in error, his habits of excessive drinking, intoxication, etc. Dr. Spaulding was called and examined as to insanity resulting from drunkenness, and as to the form of insanity known as dipsomania.

For the purpose of presenting one of the alleged errors relied on by plaintiff in error, and one which may arise upon a subsequent trial, I here quote from the record certain questions, objections, and the rulings of the court:

"Q. When a man has been irresistibly in the habit of drinking intoxicating liquors periodically, to excess, and has contracted an irresistible desire for its use--when under the influence of liquor--what, in your opinion, would be his condition as to being sane or insane?

"Objected to as incompetent. Sustained. Defendant excepts.

"Q. When a man has been irresistibly in the habit of using intoxicating liquors for seventeen years more or less to excess, at intervals, say, from a week to six weeks apart, being drunk for two weeks and sober for a period between that and his next debauch, state whether such a man would be considered, during the time of his intoxication, as free from the disease known as dipsomania?

"Objected to as immaterial. Sustained. Defendant excepts.

"Q. When a man has used intoxicating liquors for a period of ten years to excess, during from five to seven days at a time, then an interval of from four weeks to three months intervening between that and the next time when he used intoxicating liquor to excess, and so continued irresistibly to use it for from five to eight days, and so continued in that intermittent way to use liquor, being sober at times and drunk at others for ten years, what is your opinion as to his being entirely free from any disease known under the head of any of the general subdivisions of insanity while laboring under the influence of intoxicating liquor at any one of these times?

"Objected to as incompetent--sustained. Defendant excepts."

The court here adjourned until the next day to allow counsel to "frame an hypothetical question," which was done, and the witness examined thereon during the course of the trial. As the witness was fully examined during the subsequent stages of the trial, whatever error might have been committed by the ruling of the court in sustaining the objections was effectually cured, and there would be no ground for complaint. But was the ruling erroneous?

The definition of dipsomania given by this witness, and which is no doubt correct, is as follows: "Dipsomania is an irresistible impulse to indulge in intoxication, either alcohol or other drugs--opiums." This mania or disease is classed as one of the minor forms of insanity. Applying this definition to the first of the above interrogatories the question might be stated thus:

"If a man has been suffering from dipsomania, and has contracted dipsomania, what in your opinion would be his condition as to being sane or insane?" The same observations are applicable to the second question, except that it is more obnoxious to the objection than the first, as the question is asked directly whether such a person would be "free from the disease known as dipsomania?" The third is substantially the same except that the time referred to is "while laboring under the influence of intoxicating liquor." There seemed to be an "irresistible" impulse operating on the mind of counsel to include the word "irresistible" in all his forms of interrogatory, and this, too, without any proof of the irresistible desire for intoxicating liquors on the part of plaintiff in error. It is true the testimony shows repeated intoxications for a number of years, but there is nothing which negatives the idea of these "spree...