Ince v. State

• Decision Date: 17 June 1905
• Citation: 88 S.W. 818,77 Ark. 418
• Parties: INCE v. STATE
• Court: Arkansas Supreme Court

88 S.W. 818

77 Ark. 418

INCE v. STATE

Supreme Court of Arkansas

June 17, 1905

Appeal from Yell Circuit Court, Danville District; WILLIAM I. MOOSE Judge;

reversed.

STATEMENT BY THE COURT.

The defendant, James W. Ince, was indicted, tried and convicted of the crime of murder in the first degree for killing his wife and three children. Counsel was appointed by the court to conduct his defense, and a plea of insanity was interposed.

The fact that he committed the homicide is not disputed, and the proof discloses a most shocking deed. According to defendant's confession, he arose at an early hour in the morning, and with an ax killed his wife and their three small children, the youngest being an infant in the arms of the mother.

The particular phase of insanity with which the defendant is claimed, by his counsel, to be afflicted is homicidal mania which is defined to be a deranged condition of mind whereby there is an irresistible impulse to commit homicide. It is proved that the defendant's father is so afflicted, and is now confined in an insane asylum in another State. A great deal of other testimony was introduced, pro and con, as to the mental condition of the defendant at the time of the homicide.

The court refused to give the following instruction asked on behalf of the defendant, and such refusal is assigned as error:

"3. While in case of homicide the jury may properly consider the motive which prompted the act itself or the want of motive if no motive be shown, it is a circumstance in favor of the defendant's innocence, to be considered by the jury."

The jury, after deliberating several hours, returned into court with the following verdict: "We, the jury, find the defendant guilty of murder in the first degree, but demand that a thorough investigation by experts be made into defendant's sanity--sixty days' limit.

The court refused to accept this verdict, and said to the jury: "Gentlemen, the verdict is not in usual or proper form. It will not be proper to attach any condition or limitations to the verdict. In case of conviction, the defendant cannot be executed for more than thirty days, and the supposition is that defendant's attorneys will look after his interest in all proper ways."

Counsel for defendant excepted to this language, and the court thereupon said further to the jury:

"Gentlemen, upon reflection, I desire to withdraw what I said in regard to defendant's attorneys looking after defendant's interest. It would be improper for me to say anything to you that could be construed as an inducement or argument for you to find the defendant either guilty or innocent, and I do not mean to do so. Your verdict should be upon the facts and evidence before you now, and with no reference to any step that may or may not be taken in the case hereafter, and your verdict must not contain any conditions."

The jury then retired, and in a short time returned a verdict of guilty as charged in the indictment.

Before sentence was pronounced on the defendant, his counsel filed and presented to the court a motion in arrest of judgment, setting forth as grounds "that the defendant is now insane."

The court overruled this motion, and sentenced the defendant in accordance with the verdict.

Cause reversed and remanded.

Sam T. Poe, Tom D. Patton and Priddy & Chambers, for appellant.

The motion for continuance should have been granted. Const. Art. 11, § 10; 50 Ark. 161. The court's remarks to the jurors who were being examined were improper. 45 Ark. 165. The closing remarks of the prosecuting attorney were improper. 58 Ark. 474; 75 Ark. 67. The court invaded the province of the jury. 60 Ark. 49; 49 Ark. 153; 34 Ark. 693; 43 Ark. 289; 44 Ark. 115; 45 Ark. 165. It was error to permit the jury to separate. 12 Ark. 782; 75 Ark. 67.

Robert L. Rogers, Attorney General, for appellee.

Insanity will excuse a crime only when it is made to appear affirmatively by evidence fairly preponderating. 40 Ark. 522; 54 Ark. 602.

MCCULLOCH J. BATTLE, J., dissents.

OPINION

MCCULLOCH, J., (after stating the facts).

1. Counsel urge that the court erred in refusing the third instruction asked by defendant, that, "if no motive be shown, it is a circumstance in favor of the defendant's innocence, to be considered by the jury." In criminal prosecutions it is competent to introduce testimony of facts and circumstances tending to show a motive or absence of motive for the commission of the crime by the accused, as tending, with more or less force, to establish his guilt or innocence. It is not improper for the court to instruct the jury that they may consider such testimony for that purpose. But this should be done in connection with all other facts and circumstances proved, and it is not proper for the court in the instructions to single out the proof of motive or absence of motive and tell the jury that they may consider that as a circumstance in favor of his guilt or innocence. Especially is this true where the language of the instruction is not guarded by a further instruction in the same connection that the jury are the exclusive judges of the weight and sufficiency of such testimony. By giving the instruction in the form asked, the court would have placed undue weight upon the proof of absence of motive, thus invading the province of the jury. It would have been error for the court to single out the question of motive for the crime and point to it as a proper subject of consideration as an evidence of defendant's guilt, and it would have been equally erroneous and improper to point to the want of motive as an evidence of his innocence. We find no error in this ruling of the court.

Nor de we find any prejudicial errors in the remarks of the court to the jury in declining to accept the conditional verdict offered. The learned judge should have contented himself with declining to accept the imperfect verdict, without any remarks or reference to the course which the defendant's counsel could take in the future; but we think that there is nothing in his remarks calculated to prejudice the rights of the defendant before the jury. Especially is this true in view of his remarks to the jury a few minutes later.

2. Counsel press, as grounds for reversal, other alleged errors of the court, some of which were not preserved in the motion for new trial. This is true of the exception to the testimony introduced by the State showing, as a motive for the crime, the ill-will of defendant toward his wife's father. It is urged that this was too remote to serve as a motive, but the exception to this ruling of the court is not brought forward in the motion for new trial.

It is contended that certain members of the trial jury were allowed to separate from their fellow jurors during the progress of the trial, but we think that the testimony introduced on the hearing of the motion for new trial shows that these jurors were not subjected to any improper influences. One of the jurors is shown to have left the jury box during the progress of selecting the jury (after he had been accepted as a juror) and occupied for a short while a seat among the audience. This was before the completion of the jury and presentation of the case, and it is not shown that this juror was subjected to any improper influence. The separation of the juror at that time and under those circumstances was not sufficient to cast upon the State the burden of showing that he was not exposed to improper influence. This occurred in the presence of the court and whilst the jury was being selected, and we can not say that he erred in his conclusion that the rights of the defendant had not been prejudiced by this indiscretion on the part of the juror.

3. Appellant's motion in arrest of judgment on the ground of present insanity did not state statutory grounds for arrest of judgment, but should have been treated as a motion to stay sentence, and, as such, the court erred in overruling it. The statute reads a follows: "He may also show that he is insane. If the court is of opinion that there is reasonable ground for believing he is insane, the question of his sanity shall be determined by a jury of twelve qualified jurors, to be summoned and impaneled as directed by the court. If the jury do not find him insane judgment shall be pronounced. If they find him insane, he must be kept in confinement, either in the county jail or lunatic asylum, until, in the opinion of the court, he becomes sane, when judgment shall be pronounced." Kirby's Digest, § 2240. The fact that a plea of insanity has been interposed as a...