Howard v. State

• Decision Date: 18 April 1911
• Parties: HOWARD v. STATE.
• Court: Alabama Supreme Court

55 So. 255

172 Ala. 402

HOWARD v. STATE.

Supreme Court of Alabama

April 18, 1911

Appeal from Circuit Court, Covington County; H. A. Pearce, Judge.

J Finley Howard was convicted of murder in the second degree and appeals. Reversed and remanded.

W. H Samford, J. Morgan Prestwood, Albritton & Albritton, and Henry Opp, for appellant.

Robert C. Brickell, Atty. Gen., for the State.

SOMERVILLE J.

The defendant was tried on an indictment charging him with the unlawful killing of George Bagley, with malice aforethought. He pleaded, "Not guilty," and also, "Not guilty by reason of insanity," and upon the issues thus made and joined the defendant was found guilty of murder in the second degree, and sentenced for a term of 15 years.

1. The defendant requested in writing the general affirmative charge that, if the jury believed the evidence in the case, they should find the defendant not guilty. The charge was refused and error is imputed on the theory that there was no evidence as to the venue of the crime. W. S. Hart, a witness for the state, testified that "he (the deceased Bagley) died in my shop in the county and in the town of Andalusia"; and he and other witnesses testified that Bagley's wounds from which he died were inflicted in this same shop. We judicially know that Andalusia is in Covington county; and hence no other proof of the venue was necessary.

2. The defendant also requested in writing the general affirmative charge that, if the jury believed the evidence in the case, they should find the defendant not guilty by reason of insanity. This charge was refused, and it is vehemently insisted for the defendant that its refusal was erroneous; the contention being that the initial presumption of the sanity of the defendant was fully met and completely overthrown by the direct and positive evidence of his insanity, introduced on behalf of the defendant, in rebuttal of which the state offered no evidence at all, choosing--to quote the language of counsel--to treat the issue of insanity "with silent and cynical contempt." The question thus presented has not heretofore been considered by this court; and among all the reported cases we find but a single instance in point. It is therefore open to us to inquire whether, on reason and principle, such an instruction on such an issue may, in any case, be properly given by the court to the jury; and, if so, whether it should have been given in the present case.

The evidence introduced for the defendant tended to show very strongly, if not conclusively, that Mrs. Bagley, the wife of the deceased, had circulated reports imputing to defendant's sister, who lived with and was dependent upon him, a want of chastity, and that she had several times aspersed defendant's character to a young woman to whom he was engaged to be married, and warned her not to keep his company, and that these facts had been communicated to defendant. That the deceased had affirmed the accuracy of his wife's statements, had insulted defendant's sister in a personal conversation with her, and threatened to kill defendant if she told him about it, of all of which, except the threat, she had informed defendant. That, under the stress of this situation, which continued for some time, defendant became nervous, irritable, and morose, and finally determined to secure a retraction of the injurious charges, and to stop their further circulation.

According to the defendant's own testimony, he went to see the deceased at about 9 o'clock on the morning of the killing, with a view to getting him to go with him to see Mrs. Bagley and help in the settlement of the trouble, which the deceased declined to do; and, an hour or two later, being advised thereto by a friend, he repeated his visit to deceased, at the shop where he worked, with the same request; and it was then that the altercation ensued, during which defendant fired the three pistol shots, resulting in Bagley's almost immediate death.

Defendant's father testified that defendant was a pale, nervous boy, and always of a melancholy disposition, though he had seen him only once or twice in the two or three years preceding this killing; that defendant's mother, several months before his birth, fell down the porch steps and suffered serious injury, which confined her in bed for five months; that thereafter she became nervous and irritable and a physical wreck; and, though she lived 25 years longer, she went from bad to worse, and finally died insane. The witness also testified that an aunt of his wife died in a hospital, violently insane, and that a younger brother of defendant is weakminded, violent at times, and requires the care of an attendant.

Two physicians, Drs. Broughton and Lightfoot, testified from personal knowledge to the abnormality of defendant's mother, and agree that she suffered from the form of insanity known as paranoia. They stated, from protracted personal observation of the defendant, that in their opinion he had from infancy suffered from paranoia, a disease of the brain, and productive of insanity in a greater or less degree, though often intermittent in its character; that defendant was peculiar, eccentric, and morose, and easily excited and provoked to the verge of insane acts; that he was morbidly sensitive where his honor was involved; that his condition would often render him unable to distinguish right from wrong in particular cases; and that, from their personal knowledge of his ancestry, his mental and physical constitution, and the traits he exhibited, coupled with the exciting and provoking incidents shown by the evidence, they were of the opinion that, at the time of the act of killing Bagley, he either did not know the moral nature of the act, or was unable to refrain therefrom, and that the act was the product solely of his mental condition.

We are referred by appellant's counsel to but a single authority dealing with the precise question here involved, and we have been able to find no other. The case is that of State v. Brown (Utah) 102 P. 641, reported also in 24 L. R. A. (N. S.) 545. We do not feel justified in presenting here an exhaustive review of this case, but, for the purpose of comparison, we briefly epitomize the facts and conditions which the Utah court held to be a sufficient predicate for a peremptory instruction to the jury in favor of the defendant, on the issue of insanity.

The defendant, Brown, about 30 years old, was charged with the forgery of a bank check, which act was not disputed by him before or during the trial. On the trial no attempt was made by him to explain or extenuate the act; his sole reliance being on his plea of insanity. We infer that he did not testify at all before the jury. A paternal great-grandmother, great-grandfather, and aunt, besides the father himself, had all been insane. Although earlier he had been mentally alert and competent in business affairs, for several years previous to this forgery he exhibited numerous mental vagaries and hallucinations, many of them being of the most fantastic character. The defendant's conduct and declarations in relation to the forgery, as narrated by witnesses for the state, were well calculated in themselves to cast doubt upon his mental integrity, as the opinion points out. To quote from the opinion: "The witnesses 14 in number, among whom were business men, lawyers, police officers, county attorney, and court officers, all were of one mind that the defendant, at the time of the alleged offense, was mentally unbalanced, did not know or realize the consequences of his act, and that his state of mind was such that he did not know the nature and quality of the act with which he was charged, and that he did not know or realize that the act was wrong. * * * Some of the witnesses laid special stress upon the incoherent character of his...