Bothwell v. State

• Decision Date: 05 May 1904
• Docket Number: 12,656
• Citation: 99 N.W. 669,71 Neb. 747
• Parties: JOHN J. BOTHWELL v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

99 N.W. 669

71 Neb. 747

JOHN J. BOTHWELL v. STATE OF NEBRASKA

No. 12,656

Supreme Court of Nebraska

May 5, 1904

ERROR to the district court from Cherry county: WILLIAM H WESTOVER, JUDGE. Reversed.

REVERSED.

E. D Clark and Hamer & Hamer, for plaintiff in error.

Frank N. Prout, Attorney General, and Norris Brown, contra.

OPINION

HOLCOMB, C. J.

An information was filed in the trial court, charging the accused with the crime of rape upon his daughter. A plea of not guilty was interposed. Upon this plea, at the trial, it developed that the defense of insanity was relied on by the defendant to escape legal responsibility for the act charged. Upon a trial to the court and a jury of the issue raised by the plea of not guilty, a verdict was returned finding the defendant guilty as charged and, after the overruling of a motion for a new trial, sentence of imprisonment in the penitentiary during the natural life of the defendant was pronounced by the court. The defendant prosecutes error. To establish his defense, testimony as to the defendant's mental condition was introduced, both of an expert and nonexpert character. It is alleged in the petition in error that the verdict is not sustained by the evidence, the contention being that the evidence indisputably establishes the defense of insanity. It is conceded, however, by counsel for defendant that, in order for the court to reach this conclusion, it must establish a new rule as to the test of legal responsibility when insanity is interposed as a defense for an act otherwise criminal. The substance of the contention of counsel is that the defendant's mind was not at the time of the act charged perfectly sound and normal; that he was physically impaired by disease, and that his mental condition was the result of such physical impairment; that he was both a mental and physical wreck, and unable to control his action, and therefore not legally responsible for the act of which he was charged. Counsel say: "We desire to have this court formulate a rule that shall secure the punishment of those who are strong enough to determine that which is right and that which is wrong, and who are able to choose between the two, but that no one should be punished who is so far mentally impaired as to be unable to choose between right and wrong." It is argued that the evidence discloses that the defendant was born with a taint of insanity within his veins, and that he was insane by heredity; that he was subject to severe attacks of headache and was nearly always melancholy; that he gave way to the most violent fits of anger without provocation, was brutal to his mother and his children, and unnaturally cruel; that he had tremors and hallucinations, and would give way to paroxysms of grief over the violences and viciousness which he could not help. A specialist on brain disease, one of the superintendents of an insane asylum of the state, who testified in the case, denominated the defendant a "degenerate." Says the witness, by the use of that term is meant that the defendant is not up to the standard of normal mankind, referring especially to his intellectual, moral and physical forces; that such an individual would be subject to, and the victim of, a violent temper, uncontrollable appetites and impulses which his will power could not control, and that the absence of such ability to control his impulses and desires, owing to the fact that they were stronger than his will, though his reason and his judgment might not be at fault, would constitute technical insanity. It is further said that such a person would not have a normal conception of what constituted right and wrong as to himself, nor to his family, nor to society. Testimony of other physicians of a similar character was also introduced in evidence, as was also the testimony of nonexpert witnesses who, after detailing the actions and conduct of the defendant, expressed it as their opinion that he was insane. To meet evidence of this character, the state introduced several witnesses who, after showing some familiarity with the defendant, were permitted to testify that, in their judgment, he was sane.

After the introduction of the evidence, the defendant's counsel requested the following instruction as embodying a correct principle of law, which was refused: "If the defendant acted under an irresistible impulse which his will was powerless to resist, and which overcame his will, and which impulse was the outgrowth or result of physical infirmity or disease, you will acquit." From what has been said, it is obvious that, in respect of the nature of the defense, this case is in all its essential bearings analogous to, and controlled by, the principles announced in the case of Schwartz v. State, 65 Neb. 196, 91 N.W. 190. It is there said:

"Capacity to comprehend the nature and moral quality of an act determines criminal responsibility. There is no other safe or practical test. It is entirely certain that the defendant in this case did not have a well balanced mind. He had an inherited tendency to insanity, and had in past years received treatment in a hospital for the insane. It seems too, that he had at times illusions and delusions, but these were not in any way connected with the crime in question. He had groundless fears, and heard voices in the air, but it was not in consequence of these things that he debauched his daughter. It may be conceded that his mental powers were impaired, and his conscience blunted by disease, but that does not render him legally irresponsible. If he understood what he was doing, and knew it was wrong and deserved punishment, the obligation to control his conduct and keep within the law was absolute. Having this degree of mental capacity, he can not allege the sway of a turbulent passion as an excuse for his crime. The doctrine of moral insanity or uncontrollable impulse, upon which counsel seem mainly to rely, is not recognized in the jurisprudence of this state." We are not disposed to depart from the rule as to the test of legal responsibility thus announced, which has the support of an unbroken line of decisions in this state, beginning with...