Fiscus v. Turner

• Decision Date: 26 May 1890
• Docket Number: 15,201
• Parties: Fiscus v. Turner et al
• Court: Indiana Supreme Court

24 N.E. 662

125 Ind. 46

Fiscus v. Turner et al

No. 15,201

Supreme Court of Indiana

May 26, 1890

Petition for a Rehearing Overruled Sept. 18, 1890.

From the Decatur Circuit Court.

Judgment affirmed.

J. S Scobey, for appellant.

J. K Ewing and C. Ewing, for appellees.

OPINION

Coffey, J.

This was a proceeding by the appellees against the appellant, in the usual form, to have her declared insane and to procure the appointment of a guardian. Upon issues formed the cause was tried by a jury, resulting in a verdict to the effect that appellant was a person of unsound mind, and incapable of managing her estate. Overruling a motion for a new trial, the court rendered judgment on said verdict, from which this appeal is prosecuted.

The only error properly assigned in this court is the one calling in question the action of the circuit court in overruling the motion for a new trial.

Many questions discussed by counsel for appellant in his able brief, under this assignment, relate to the evidence in the cause, and at this point we are met with an objection from the appellees, to the effect that the evidence is not in the record. It appears from the return to a writ of certiorari that the long-hand manuscript of the official reporter was not embodied in a bill of exceptions signed by the circuit judge as required by the provisions of section 1410, R. S. 1881. The evidence in the cause is not, therefore, a part of the record, and can not be considered by us. Wagoner v. Wilson, 108 Ind. 210, 8 N.E. 925; Doyal v. Landes, 119 Ind. 479, 20 N.E. 719; Ohio, etc., R. W. Co. v. Voight, 122 Ind. 288, 23 N.E. 774.

It is settled that in this state of the record we can not consider any question which can not be properly decided in the absence of the evidence.

The court, on the trial of the cause, of its own motion, among other instructions, gave to the jury the following:

"4. Unsoundness of mind is where there is an essential privation of the reasoning faculties, or when a person is incapable of understanding and acting with discretion in the ordinary affairs of life. Therefore, if you believe from the evidence in this cause that in Nancy Fiscus there is an essential privation of her reasoning faculties, or if she is incapable of understanding and acting with discretion in the ordinary affairs of life, then she is a person of unsound mind, and incapable of managing her estate, and you should so find. If, on the other hand, she is capable of understanding and acting with discretion in the ordinary affairs of life, she is a person of sound mind, and capable of managing her estate.

"5. What the facts in this case are you are to determine from the evidence, and that alone.

"6. Witnesses who have talked with, transacted business with, and otherwise known Nancy Fiscus, have been permitted to give their opinions as to the condition of her mind, and as to whether or not she is capable of managing her estate; but these opinions were predicated upon the facts as they have detailed them to you, and it is for you to determine, having listened to the facts upon which such opinions have been predicated, whether or not the facts as stated by any given witness warranted the opinion expressed by the witness, or to what extent the same was warranted, and only such weight is to be given to the opinions you have heard expressed as the facts upon which they were founded would warrant."

It is urged by the appellant that the fourth instruction above set out is vague, indefinite, confusing and uncertain, and erects no standard of judgment, no criterion by which to weigh, measure or judge of the evidence, or to discharge the duty of a juror.

The definition of insanity contained in this instruction seems to have been taken from the case of Wray v. Wray, 32 Ind. 126, which was in that case approved by this court. We think counsel is mistaken in his contention that the instruction does not fix any standard by which the jury is to be governed. The jury were told, in substance, that if Nancy Fiscus, the appellant, was so far deprived of reason that she was no longer capable of understanding and acting with discretion in the ordinary affairs of life, she was insane within the meaning of the law. This we think was a correct definition of insanity, and one that was easily understood by the jury.

The objection urged to the fifth instruction is, that it took from the jury their right and duty to consider the demeanor conduct, appearance and behavior of the appellant while on the witness-stand. The argument is that the Legislature by the enactment of section 2547, R. S. 1881, intended that the defendant, in cases like this, should be present in court to the end that he or she might be seen by the jury and heard testify, if capable of testifying, and that the appearance and conduct of the defendant in such cases should be...