Green v. State

• Decision Date: 08 January 1898
• Citation: 43 S.W. 973,64 Ark. 523
• Parties: GREEN v. STATE
• Court: Arkansas Supreme Court

43 S.W. 973

64 Ark. 523

GREEN v. STATE

Supreme Court of Arkansas

January 8, 1898

Appeal from Jackson Circuit Court RICHARD H. POWELL, Judge.

Judgment reversed and cause remanded.

M. M Stuckey and Phillips & Campbell, for appellant.

The mental condition of a party being in issue, evidence of his habits, physical condition, conduct and conversations, is admissible. 15 Ark. 601; 20 Ark. 216; 54 Ark. 598; 55 Ark 259; 61 Ark. 241. The court's ruling precluded the introduction of any evidence as to the defendant's state of mind, because it held that defendant must first establish a disordered mind, before they could prove the acts conversations, etc., relied on to establish that very fact. The hypothetical questions asked Dr. Hurt by defendant were based on material facts proved, or offered to be proved, by defendant. It was error to exclude them. Rogers, Exp. Test. 43. The court erred in holding Dr. Burns and Brewer not to be qualified as experts. Rogers, Exp. Test. 1; 23 Ark. 733. It was error for the court to use the word "offense" as descriptive of the act for which defendant was on trial. Const. art. 7, § 23; 43 Ark. 73; 51 Ark. 147; 54 Ark. 489; 62 Ark. 126. The court also erred in remarking, in the hearing of the jury, that defendant "must first show some element of insanity," etc., for this takes the weight of the evidence from the jury. The court erred in permitting counsel for state to use improper language in the hearing of the jury. 27 Am. St. Rep. 328; 9 Am. St. Rep. 559; 56 Ark. 473; 61 Ark. 130; 37 S.W. 877; 62 Ark. 126; 62 Ark. 516. The instructions of the court as to insanity were erroneous. 50 Ark. 511; 54 Ark. 588; 55 Ark. 259; Clark, Crim. Law, p. 52, § 30. The court erred in refusing instructions asked by appellant as to self-defense and insanity. 55 Ark. 259; Clark, Crim. Law, p. 53. The court should have instructed the jury as to the grades of manslaughter. 34 Ark. 232. The verdict is too indefinite, because it does not specify the grade of manslaughter. 26 Ark. 323; id. 333; id. 534; 57 Ark. 560.

E. B. Kinsworthy, Attorney General, for appellee.

Evidence that certain causes might induce insanity is not admissible, without laying or offering to lay a basis of proof to show that insanity actually existed. 1 Wh. & Stille's Med. Jur. § 377; 35 F. 80; 31 Ind. 492; 1 Wh. Cr. Law, § 85; 20 Nev. 333; Buswell, Insanity, § 216. Evidence of hereditary insanity is only competent when a basis has been laid by proof of defendant's own insanity. 1 Wh. & St. Med. Jur. § 377; 28 Ill. 306; 84 Pa.St. 200; 1 Wh. C. L. § 65; 6 Jones (N. C.), 471. The opinions of expert witnesses must be founded on facts observed or described. Buswell, Insanity, §§ 250-264. The court had a right to refuse Dr. Brewer as an expert. Buswell, Insanity, § 256. Emotional insanity is not recognized in our law. 55 Ark. 262; 102 N.Y. 250. It was no error to refuse the declaration as to self-defense. 38 Mo. 271-273; 85 Mo. 190; 81 Ala. 38; Clark, Crim. Law, pp. 151-156; 49 Ark. 549; 46 Ark. 283; 40 Ark. 454; 37 Ark. 256. The verdict is definite enough. 47 Ark. 297.

OPINION

BATTLE, J.

Frances Green was indicted in the Jackson circuit court, at the July term, 1897, for the crime of manslaughter, committed by shooting Walter Donalson with a gun. She pleaded not guilty, was tried and convicted, and appealed.

The evidence adduced in the trial tended to prove the following facts: Walter and Frances were engaged to be married. She was eighteen years old, never had been married, and was of good standing, as a colored girl, in Jackson county, where she resided. She was second teacher in the Sunday school, and had a class of little girls. During her engagement to marry, Walter seduced her by virtue of a promise of marriage, and she became pregnant with a child, At his instance, she visited Pine Bluff. He was to follow, and they were to be married. On the Friday next before the killing, she returned home and learned that Walter was to marry, in a few days, a woman named Lettia. She was greatly distressed. From the time of her return until Monday following, the 24th of May, 1897, she did not eat or sleep. Her conduct was entirely changed. "She would start," a witness said, "to do one thing, and do another, and start to say one thing, and say another." Her mother testified that during Sunday night, she went to bed, and then arose and went to her, "and kept walking backwards and forwards, patting her breast," and "she would just squat down and put her hands on her breast." When her mother spoke to her, she said, "My mind is worried to death." After making the foregoing statement, and while testifying, appellant's counsel asked, "From what she said, and from her conduct, did she seem to know what she did? And witness replied, "No sir; she did not. She did not know what she was doing." And, the state objecting to the question and answer, the court excluded it, and the appellant objected and saved exceptions. On that night (the Sunday night mentioned), the 23d of May, 1897, Walter and Lettia were married. On the morning next following, Lugenia Carter and Walter, with Lugenia's baby in his arms, and Lettia, in company, walking, passed near the house where Frances was residing with, her parents. Frances was in the house at the time, and saw them pass; and after they did so, and had gone a short distance, she seized a gun and followed, and, when she approached near, commanded him to halt; and he turned, and she said: "Walter, you have fooled me long enough. You told me yesterday it was a long lane that had no turn. You have to die. Hand Lugenia the baby." She testified that he then moved the baby from his right to his left arm, and his hand, as she thought, for his pistol, and she, without taking any aim, shot him, and that she killed him because he had "stolen her virtue," and had threatened to kill her, and had "scandalized" her among her people. She made no attempt to escape.

After the testimony tending to prove the foregoing facts had been adduced, Dr. Hurt, who had been in active practice as a physician for over fifty years, and had studied diseases of the mind, seen insane persons, and treated persons suffering from diseases of the mind frequently, testified that the condition u and acts of Frances, as before stated, indicated an aberration of the mind.

After Joel Jackson had testified that he was acquainted with the appellant, her father, mother, grandmother, her great-uncle and her great-aunt and had known them all his life, the appellant offered to propound to him questions, and prove by him what he stated in reply thereto, in the presence of the court and in the absence of the jury, as follows:

Question. "State to the jury some of his [Peter Speed, great-uncle of defendant] acts, showing his condition of mind."

Answer. "Well, he was a kind of crazy fellow. They could not do anything with, him, so they put him a house, and chained him there. His sister Rose got in the same fix, and they built a little house and put her in it."

Q. "State what you know as to how his owner had to keep him."

Ans. "They could not do anything with him. They had to chain him and put him in a little house as I have said."

Q. "State any acts of hers [great-aunt of defendant] that you know of, showing her condition mentally."

Ans. "She got crazy, and they had to put her in a little, house, too; put her in a house, and chained her there. There is always some of the family in that condition. There is some of them in Woodruff county now, in the same fix."

Q. "State such facts as you may know about her [grandmother of defendant] that will show her condition of mind."

Ans. "Her grandmother has no mind. She is in Woodruff county now. She is so crazy they have to keep her tied up."

Q. "State if you know any acts of her [mother of defendant] that go to show her mental capacity during the time she was pregnant.

Ans. "Yes, sir. There was an old man that went into the woods to get logs. He came up missing in two or three days. We thought he was gone, as we could not find him. One day we went out to hunt him. They knew he was cutting some logs. They found him dead, lying on a log, and he had turned right black. That time of day, when the two fellows found him, they told us, and this girl went out there with the others, and she got frightened at him; and in two or three days they found this girl, but it was a good while until she got her mind again."

Q. "Do you know any circumstances that happened just before Frances' birth that brought about a great shock to her mother?"

Ans. "Yes, sir. That is about the old gentleman I have just stated."

Q. "State how much alike defendant and her mother are in disposition."

Ans. "They are just about the same. There is not a bit of difference in them."

Q. "While Frances' mother was pregnant with Frances, what was her disposition towards the members of her family? "

Ans. "She was mighty unruly and hard to get along with; what I call crazy, so you could not do much with her."

Q. "How did she treat the members of her family during that time?"

Ans. "Treated them mighty cruel,--what I call cruel."

Q. "Did they give her any cause for such treatment during that time?"

Ans. "No sir, they did not give her a bit. I think she just had those foolish spells,--just gave herself them."

And the court refused to allow the interrogatories to be propounded, and the answers to go to the jury as evidence.

J. J Walker having testified that he was sheriff of Jackson county, and had had the appellant in custody since the evening of the killing, she offered to prove by him that he had frequent conversations with her, from the time he arrested her to the present, and that she seemed very unconcerned, and to think that she had done right, to be...