Dobbs v. State
| Decision Date | 08 July 1935 |
| Docket Number | Crim. 3939 |
| Citation | 85 S.W.2d 694,191 Ark. 236 |
| Parties | DOBBS v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Saline Circuit Court; H. B. Means, Judge; affirmed.
Judgment affirmed.
Kenneth C. Coffelt and Wm. J. Kirby, for appellant.
Carl E. Bailey, Attorney General, Guy E. Williams and Ormand B. Shaw, Assistants for appellee.
Fannie and Louisa Orr, two sisters, elderly ladies, lived in a rural community, with their nearest neighbor about a mile away. Appellant went to their home about dark, and demanded money and, when he was given about $ 160, he insisted that this was not all the money the women had. The women asked him to take the money and leave them alone, but he said dead people told no tales, and he proceeded to beat both women with a stick of stove wood. After beating Fannie Orr into insensibility, he cut her throat. He beat Louisa Orr also and attempted to cut her throat. Appellant set fire to the house, and left it burning, and it was entirely destroyed. Fannie was dead when he left. Fortunately, Louisa's throat was only lacerated and she was able to drag the body of her sister out of the house before it was consumed by the fire. The identification of appellant was complete as the perpetrator of the crime. He was tried and convicted for the murder of Fannie Orr and given a death sentence. The sufficiency of the testimony to prove the commission of the homicide is not questioned, but insanity at the time of the commission of the crime was interposed as a defense. It is not insisted that there was any error in the instructions which submitted that question to the jury.
It is first insisted that error was committed in refusing to quash the indictment because of the presence of A. B. Cornett as a member of the grand jury which returned the indictment. The record recites the following proceedings in impaneling the grand jury: It is insisted that the right to challenge the juror Cornett should have been accorded because of the bias and prejudice of the juror against appellant. This, however, is not a ground upon which the right to challenge a grand juror could be predicated. The statute upon that subject reads as follows: "Every person held to answer a criminal charge may object to the competency of any one summoned to serve as a grand juror, before he is sworn, on the ground that he is the prosecutor or complainant upon any charge against such person, or that he is a witness on the part of the prosecution, and has been summoned or bound in a recognizance as such; and, if such objection be established the person so challenged shall be set aside." Crawford & Moses' Digest, § 3005.
In the case of Threet v. State, 110 Ark. 152, 161 S.W. 139, the defendant had been indicted while confined in jail without being afforded the opportunity to challenge the competency of any member of the grand jury. But this was held not to be erroneous when it was not made to appear that the accused had been denied the benefit of some right secured by the statute quoted. The statute conferred no right to challenge Cornett because of his bias or prejudice.
At the conclusion of the testimony on the part of the State showing the commission of the homicide by appellant, testimony was offered on his behalf tending to show that he was insane. A number of non-expert witnesses were introduced, who, after stating the facts upon which their opinions were based, expressed the opinion that appellant was insane. Two physicians were called, who testified as experts in his behalf. These were Doctors R. E. Rowland and E. T. Ponder.
Dr. Rowland was asked his opinion about appellant's sanity, based upon a hypothetical question, and expressed the opinion that the facts therein stated indicated that the person inquired about was of abnormal mind. He admitted that he made no examination of appellant, and declined to say whether appellant was sane or insane.
Dr. Ponder did make a personal and physical examination of appellant of two hours' duration, and he expressed the opinion that appellant was insane. He stated that this opinion was based upon appellant's personal and family history (including the fact that two of his mother's brothers had been insane), his own examination of appellant, and the testimony which he had heard in the case. He expressed the opinion that appellant was suffering from dementia praecox, which is a form of insanity.
It is very earnestly insisted that error was committed in refusing to permit Professor C. C. Denney to answer the hypothetical question which had been propounded to and answered by Dr. Rowland. This witness testified that he was a graduate of Valparaiso University, and had done three years' postgraduate work in Peabody Teachers College, and had taught psychology in the State Teachers College for twenty-five years, and that the science which he taught included the subject of insanity. The court held that the witness had not been properly qualified to testify as an expert, and that ruling is assigned as error.
The witness was asked this question: He answered the question as follows: Upon making this answer permission was asked to propound the hypothetical question. The answer quoted indicates that the witness was unwilling to answer, because he was unable to pass judgment unless he knew the habits of appellant and "the courses they have pursued." Had the witness possessed this information, which he admitted he did not have, he, like other witnesses who testified on behalf of appellant, should have been permitted to testify as a nonexpert, basing his opinion on these observations.
It was held, in the case of Hankins v. State, 133 Ark. 38, 201 S.W. 832, that it was error to admit the testimony of nonexpert witnesses who gave their opinion as to the sanity of the accused without stating any facts upon which they based their opinions and without showing that they were qualified to express such an opinion by stating the facts upon which the opinions were based. The converse of this rule is true. Such testimony may be admitted where the witness shows that he has had the opportunity to associate with and to observe the accused to an extent sufficient to form an opinion as to the accused's sanity. He may then state what that opinion is, the value of such testimony being, of course, a question for the jury. But this witness was not asked to give testimony of that character. He had not had this opportunity, as his answer indicated that he did not feel qualified, lacking it, to express an expert opinion.
We do not decide, however, that the testimony would have been competent had he stated that he was qualified to answer the hypothetical question. The law does not permit the witness himself to pass upon his qualifications to testify as an expert. This is a question for the court.
It is said in the brief in appellant's behalf "that expert opinion on the question of insanity based on hypothetical questions is at best but a mere guess on the part of the so-called expert." It must be confessed that there is some foundation for this criticism when we observe, as we constantly do, the contrariety of opinions which experts express in answer to the same hypothetical question. Insanity is a most illusive subject, and none of the courts have ever permitted novices and amateurs to express opinions answering hypothetical questions. Such witnesses may only express such opinions as are based upon personal association with and observation of the person whose sanity is the subject of inquiry, and then only after they have stated the facts showing opportunity for association and observation sufficient to afford a fair and reasonable basis for the formation of the opinion.
In Smoot's Law of Insanity, page 498, it is said: ...
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