Ince v. State

• Decision Date: 20 January 1906
• Citation: 93 S.W. 65,77 Ark. 426
• Parties: INCE v. STATE
• Court: Arkansas Supreme Court

93 S.W. 65

77 Ark. 426

INCE v. STATE

Supreme Court of Arkansas

January 20, 1906

Appeal from Yell Circuit Court; WILLIAM L. MOOSE, Judge; affirmed.

Judgment affirmed.

S. T Poe and J. H. Carmichael, for appellant.

1. The evidence was not sufficient to sustain the verdict. The testimony of experts establishes the insanity of defendant at the time the murders were committed. Test by which to distinguish between the homicidal maniac and the murderer Ray's Med. Jur. 224. See also 3 Witthaus & Becker on Med Jur- 276; Ib. 247; Ib. Melancholia, 233; Reese, Med. Jur. (3 Ed.), 604; 5 Pepper's System of Med., 147. If a reasonable doubt exists as to the sanity of the person, he should be acquitted. 75 N.Y. 159; 116 Ill. 555. As to non-expert testimony on questions of insanity, see 61 Ark. 241.

2. Hypothetical questions must be based upon facts admitted or established, or which the jury might legitimately find on weighing the evidence, and a fair statement of all material facts must be given in the questions. 97 N.Y. 501. An expert who has heard all the evidence should not be asked to give his opinion upon it as to the defendant's sanity or insanity. 56 Ark. 402; 1 Greenl. Ev., 16 Ed. § 441, and note.

3. The testimony of witness Tatum as to conversation with defendant relative to the insanity of defendant's father and sister was incompetent and irrelevant, and should have been excluded. 56 Ark. 345; 66 Ark. 499; 110 U.S. 574.

4. The indictment was void, in that it charges four separate murders in the same indictment. Kirby's Digest, §§ 2230, 2231; 32 Ark. 203; 38 Ark. 555.

Robert L. Rogers, Attorney General, for appellee.

1. The presumption of defendant's sanity was not overcome by the evidence tending to show insanity. The execution of a well-defined plan to murder and his attempt to conceal the crime and to escape indicate sanity. In the absence of other testimony tending to show insanity at the time the crime was committed, evidence that his father and sister were insane should not be considered. 31 Ind. 492; 1 Clevenger's Med. Jur. Ins. 90. His plea of insanity was submitted to the jury under proper instructions.

2. The indictment was not void. It could have been quashed, if demurrer had been interposed at the proper time, or the State required to elect upon which count it would rely. Kirby's Digest, § 2286; Ib. 2229; 151 U.S. 396; 34 Ark. 433.

OPINION

MCCULLOCH, J.

After this case as reversed and remanded for a new trial, it was removed on change of venue, to the circuit court of Yell County for the Dardanelle District, where the defendant was put upon trial at the September term, 1905, and was convicted of murder in the first degree.

Before sentence was pronounced, the defendant filed and presented a motion in arrest of the judgment on the alleged ground that "the indictment upon which the defendant was tried was and is void." The statute provides that "the only ground upon which a judgment shall be arrested is that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court." Kirby's Digest, § 2427. The indictment contains four counts charging the defendant separately with the murder of his wife, Frances Ince, and children, William Ince, Annie Ince and James Ince. It is contended on behalf of appellant that, more than one offense being charged in the indictment, contrary to the terms of the statute, it is void, and does not sustain the conviction. The statute is as follows: "An indictment, except in cases mentioned in the next section, must charge but one offense, but, if it may have been committed in different modes and by different means, the indictment may allege the modes and means in the alternative." Kirby's Dig., § 2230. The next succeeding section provides what offenses may be joined in an indictment, and does not mention any of the degrees of homicide. Improper misjoinder of separate offenses in an indictment is by the statute made grounds of demurrer, and can only be reached in that way. Kirby's Dig., § 2286; Pooler v. United States, 127 F. 509; Connors v. United States, 158 U.S. 408, 39 L.Ed. 1033, 15 S.Ct. 951; 1 Bishop, Crim. Proc. §§ 443, 447; Clark's Crim. Proc. p. 296; Cornell v. State, 104 Wis. 527, 80 N.W. 745; Forrest v. State, 81 Tenn. 103, 13 Lea (Tenn.), 103; Com. v. Monahan, 170 Mass. 460, 49 N.E. 751. The indictment is not void because of the misjoinder, but the objection must be raised before trial and verdict, so that the court may either quash the indictment or compel the State to elect upon which count it will proceed. Baker v. State, 4 Ark. 56; State v. Jourdan, 32 Ark. 203; Clark, Crim. Proc. p. 296.

It is next contended that the court erred in permitting the prosecuting attorney to propound to the expert witnesses who testified as to the sanity of defendant hypothetical questions which did not recite all the facts proved. There is not entire accord among the authorities as to the form in which such questions should be put to a witness and the quantum of facts to be recited therein. There seems to be some discord on the point whether a party may single out a particular fact proved, or the testimony of a particular witness, and recite it as basis of the hypothetical question, omitting all other facts which the testimony tends to prove; but the doctrine is, we think established by the decided weight of authority that the question need not embrace all the facts which the testimony tends to prove. The party offering the testimony of the witness may select the undisputed facts or such facts as he conceives to be established by the evidence, and predicate his hypothetical question upon them. Professor Wigmore states the rule thus: "The questioner is entitled to the witness' opinion on any combination of facts that he may choose. It is often convenient, and even necessary, to obtain that opinion upon the state of facts falling short of what he or his opponent expects to prove, because the questioner cannot tell how much of the testimony the jury will accept; and if the proof of the whole should fail, still proof of some essential part might be made, and an opinion based on that part is entitled to be provided for the jury. For reasons of principle, then, and to some extent of policy, the rational conclusion would be that the questioner need not cover in his hypothesis the entire body of testimony put forward on that point by him or by the...