Fain v. Commonwealth

• Decision Date: 18 November 1879
• Citation: 78 Ky. 183
• Parties: Fain v. The Commonwealth.
• Court: Kentucky Court of Appeals

78 Ky. 183

Fain v. The Commonwealth.

Court of Appeals of Kentucky.

November 18, 1879

1. The court should have permitted the appellant to prove that he had from his infancy been afflicted with somnolentia or somnambulism.

2. Also, that his children had been sick, and he had recently lost much sleep in waiting upon them.

3. The alleged threats against appellant should have been admitted.

4. If appellant, when he shot deceased, was unconscious, or so nearly so that he did not know what he was doing, nor what was being done to him, and supposed he was being assailed and resisting an attempt to take his life or to do him great bodily harm, he should be acquitted.

5. If when he fired the first, or first and second shots, he was so far unconscious that he supposed he was resisting a dangerous assault upon him, and regained his consciousness before he fired the second or third shots, his guilt or innocence will depend upon whether he believed in good faith that he was in danger of losing his life or sustaining great bodily injury.

APPEAL FROM JESSAMINE CIRCUIT COURT.

H. A ANDERSON AND BRECKINRIDGE & SHELBY FOR APPELLANT.

1. The court erred in refusing to admit evidence that appellant was afflicted with a disease called somnambulism.

2. It should have admitted evidence that his children had been sick, and he, in waiting upon them, had recently lost sleep. (Hamilton's Lectures on Metaphysics, vol. 1, 319; Wharton & Stille's Med. Jour., sec. 482; Maudsly on Insanity 484; Brown's Med. Juris. Insanity, 15; 14 Bush, 398; 3 B. Mon., 579.)

3. The court erred in instructing the jury. (Terrill v. The Commonwealth, 13 Bush, 255; 10 Bush, 499.)

No brief for appellee.

OPINION

COFER JUDGE

The appellant was indicted and tried for the murder of Henry Smith, a porter at the Veranda Hotel at Nicholasville. He was found guilty of manslaughter, and sentenced to confinement in the penitentiary for two years. From that judgment he prosecutes this appeal.

The prisoner and his friend George Welch went to the Veranda Hotel after dark on an evening in February. The weather was cold, and there was snow upon the ground. They sat down in the public room and went to sleep. In a short time Welch awoke, and, finding the deceased in the barber's shop, in the next room, called for a bed for himself and the prisoner, to pay for which he handed the deceased a bill. Welch attempted to awaken the prisoner by shaking him, but failed. He then told the deceased to wake him up. The deceased shook him for some time, and failing to wake him, said he believed he was dead. Welch said no, he is not; wake him up. The deceased shook him harder and harder until the prisoner looked up and asked what he wanted. The deceased said he wanted him to go to bed. The prisoner said he would not, and told the deceased to go away and let him alone. The deceased said it was getting late, and he wanted to close the house, and still holding the prisoner by the coat, the latter either raised or was lifted up, and, as he arose, he threw his hand to his side as if to draw a weapon. A by stander said to him, don't shoot; but without noticing or giving any sign that he heard what was said, he drew a pistol and fired. The deceased instantly grappled him to prevent him from shooting again, but a second shot was fired almost immediately, and a third soon followed. After the third shot was fired the prisoner was thrown down and held by the deceased. The prisoner, while being held on the floor, hallooed hoo-wee very loud two or three times, and called for Welch. He asked the deceased to let him get up; but the deceased said. " If I do, you will shoot me again." The prisoner said he would not, and the deceased released his hold and allowed him to get up. Upon getting up the prisoner went out of the room with his pistol in his hand. His manner was that of a frightened man. He said to a witness, " Take my pistol and defend me; " said he had shot some one, but did not know who it was, and upon being told who it was, expressed sorrow for what he had done.

It did not appear that the prisoner knew or had ever seen the deceased before. There was not the slightest evidence of a motive on his part to injure the deceased, nor does there appear to have been anything in what the deceased did or the manner of doing it which, the facts being understood, was calculated to excite anger, much less a desire to kill him. At that time the prisoner was about thirty-three years of age, and he introduced evidence to show that he had been a man of good character and of peaceable and orderly habits.

He also offered to prove that he had been a sleep-walker from his infancy; that he had to be watched to prevent injury to himself; that he was put to sleep in a lower room, near that of his parents, and a servant-man was required to sleep in the room to watch him; that frequently, when aroused from sleep, he seemed frightened, and attempted violence as if resisting an assault, and for some minutes seemed unconscious of what he did or what went on around him; that sometimes, when partly asleep, he resisted the servant who slept in the room with him, as if he supposed the servant was assaulting him.

He also offered to prove by medical experts that persons asleep sometimes act as if awake; that they walk, talk, answer questions, and do many other things, and yet are unconscious of what they do; that with many persons there is a period between sleeping and waking in which they are unconscious, though they seem to be awake; that loss of sleep, and other causes which produce nervous depression or mental anxiety, may produce such a state of unconsciousness between sleep and waking; and that for some days previous his children had been afflicted with a dangerous disease, and he had, in consequence, lost much sleep.

He likewise offered to prove that his life had been threatened by a person living near where he had been on business during the day, and that he had on that morning borrowed the pistol with which he shot the deceased, and had stated at the time that he was required to go near to where the person lived who had threatened him, and he wanted the pistol to defend himself in case he was attacked.

The court rejected all this proffered evidence, and the prisoner excepted.

All the modern medico-legal writers to whose writings we have had access, recognize a species of mental unsoundness connected with sleep, which they commonly treat of under the general head of Somnambulism.

In speaking of this peculiar affection, Dr. Ray says:

" Not only is the power of locomotion enjoyed, as the etymology of the term signifies, but the voluntary muscles are capable of executing motions of the most delicate kind. Thus, the somnambulist will walk securely on the edge of a precipice, saddle his horse, and ride off at a gallop; walk on stilts over a swollen torrent; practice airs on a musical instrument; in short, he may read, write, run, leap, climb, and swim, as well as, and sometimes even better than, when fully awake." (Ray's Med. Jur., sec. 495; Wharton & Stille, Taylor, and Brown announce similar views; Wharton & Stille on Med. Jur., sec. 149 et seq.; Taylor's Med. Jur., page 176; Med. Jur. of Insanity, sec 328 et seq. )

Under the general head of mental unsoundness connected with sleep, Wharton & Stille group somnolentia, somnambulism, and nightmare.

They define somnolentia " to be the lapping over of a profound sleep into the domain of apparent wakefulness," and say that it produces a state of involuntary intoxication, which for the time destroys moral agency. (Med. Jur., section 151.)

The writings of medical and medico-legal authors contain accounts of many well-authenticated cases in which homicides have been committed while the perpetrator was either asleep or just being aroused from sleep, and in commenting on these cases Brown, in his Medical Jurisprudence of...