Ingalls v. State

Citation4 N.W. 785,48 Wis. 647
PartiesINGALLS v. THE STATE OF WISCONSIN.
Decision Date09 March 1880
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Error to circuit court, Rock county.

Miss Lavinia Goodell, for plaintiff in error.

Attorney General, for defendant in error.

TAYLOR, J.

The plaintiff in error was tried in the circuit court of Rock county upon an information charging him with the larceny of goods from a shop, of the value of more than $100. The information also charged the larceny as a second offence, alleging the fact that he had been theretofore duly convicted and punished for a previous larceny committed by him. The plaintiff in error was convicted of the larceny charged in the information. The evidence showed and the jury found that he had been convicted of the former larceny charged in the information, and he was sentenced to the state prison for the term of five years. Exceptions were taken by the defendant on the trial to the rulings of the court in excluding evidence offered on his part; to parts of the instructions given by the learned circuit judge to the jury; and to his refusal to give several instructions requested by the defendant. After judgment a bill of exceptions was duly settled and signed, and the record is brought to this court by a writ of error.

The first error assigned by the learned counsel for the plaintiff in error, in this court, is that the circuit judge improperly excluded evidence offered on his part tending to show that, at the time the alleged larceny was committed, he was so much intoxicated that it was improbable, if not impossible, that he could have committed the larceny charged.

The evidence on the part of the state showed that a hole had been cut in the upper part of the pane of glass in the lower sash, large enough to permit the insertion of a man's hand and arm; that a nail which fastened the lower sash had been removed, the window then opened and the goods removed, without any disturbance or confusion of the goods in the shop which were not taken.

The plaintiff in error had sworn that he had been drinking very often, on the night the larceny was committed, of both whisky and beer; that he had left Janesville before the larceny was committed and knew nothing about it. He then called as a witness one Albert Jones, who had seen the plaintiff in error in the evening before the larceny had been committed. The witness was asked the following question: “Where and in what condition was he?” The question was objected to by the district attorney as incompetent, and thereupon the following colloquy took place between the learned circuit judge and the counsel for the defendant:

Judge. “The testimony of the defendant here indicates not only the possession of his faculties, but a distinct remembrance of what took place at the time, and I don't see the propriety of taking up the time to show his condition. The only question is whether he was so under the influence of liquor that he did not know what he was doing. He has stated himself that he was at various places, and what he was doing.” Counsel. We desire to show that he was in such a condition that he could not have done this job as neatly as it was done.” Judge. “I don't understand you are entitled to show that. The evidence is only admissible for the purpose of showing that the person was so under the influence of liquor that he did not comprehend what he was doing.” Counsel. We offer the evidence for the purpose of showing that the defendant was physically and mentally incapable of committing the burglary as it is shown to have been done.” Court. “If that is the purpose I will exclude it. It is only admissible for the purpose I have indicated, and not for any other.”

The defendant duly excepted to the ruling of the judge excluding the evidence. Afterwards, in his instructions to the jury, the learned circuit judge reiterated the same idea as to the purposes for which the intoxication of the accused could be considered by the jury, and said: “One cannot shield himself under the plea of intoxication to justify the commission of any act, and the only way that intoxication becomes admissible in evidence at all is to show that when the act complained of was committed the party was so intoxicated as to be beside himself, was not in his right mind, and if that mental condition was produced by temporary intoxication, why intoxication may be shown. But when the testimony shows that the person was not so far gone, his mental faculties were not so impaired by intoxication as to deprive him of reason and put him in a condition where he didn't know what he was doing, it don't go as a defence at all. It is only when it tends to show that the person who committed the act by reason of intoxication was not in his right mind, that it is a defence.” This instruction was also excepted to by the defendant.

We are strongly impressed with the idea that the learned judge did not fully understand the object of the offer to show the condition of the defendant as to drunkenness, at or about the time the larceny was committed. As we understand the offer, it was not to show that the accused was in such a mental condition as would excuse the commission of an act which would constitute the crime of larceny if committed by a sober man. It was not offered as an excuse or defence for a larceny committed, but for the purpose of showing that it was highly improbable that the accused did in fact commit the acts complained of, viz.: the entering of the shop, and removing the goods therefrom; not as a defence for want of mental capacity, but as evidence tending to show that the acts which constituted the offence were not done by the accused. This object of the evidence seems to us to have been sufficiently indicated by the learned counsel for the defendant,and for the purpose so indicated we are of the opinion the evidence was clearly competent.

The authorities cited in the brief of the learned counsel for the plaintiff in error indicate in what cases it is competent to show the intoxication of the accused, upon the question of the particular intent with which an unlawful or wrongful act was done, when such intent is necesary to constitute the offence charged. None of the cases cited, however, have a direct bearing upon the point made in this case. It would seem, however, that there can be no doubt as to the right of a person accused of crime to show that at the time of its commission he was physically incapable of committing it. There can be no doubt of the right of the accused to show that he was at the time prostrated by a disease which rendered it highly improbable that he could have endured the exertion and labor necessary to commit the crime. And so we think if, in this case, the evidence had shown that within a few hours of the time this larceny must have been committed the accused had been temporarily prostrated by drunkenness, so as to render it highly improbable that he could have been present at the place where the crime was committed, or, if able to be present, that he could have done what the evidence shows was done by those who committed the larceny, he is equally entitled to show that fact.

In such case the intoxication is not shown for the purpose of excuse or mitigation of the offence charged, but as evidence tending to show that he was not present and did not commit the acts constituting the offence. Evidence of this kind would have but little weight against direct evidence showing the actual presence of the accused at the time and place when and where the crime was committed; but, certainly, in the absence of any such direct evidence, the accused may give in evidence any fact which would have a natural tendency to render it improbable that he was there and did the acts complained of; and the fact that drunkenness was the thing which tended to prove such improbability can make no difference. If a man by voluntary drunkenness renders himself incapable of walking for a limited time, it is just as competent evidence tending to show that he did not walk during the time he was so incapable as though he had been so rendered incapable by paralysis of his limbs from some cause over which he had no control. The cause of the incapacity in such case is immaterial; the material question is, was he in fact incapable of doing the acts charged? We cannot speculate upon the effect which the evidence, if admitted, would have had upon the verdict of the jury in this case. It was offered, apparently in good faith, as evidence tending to show that the accused could not have committed the offence. Had the drunkenness been proved so complete as to have destroyed his powers of lccomotion, or so as to have destroyed the steady use of his limbs, it would have had a tendency to disprove the charge made against him. The evidence being material, it should have been admitted, and its rejection was an error for which this court is compelled to reverse the judgment.

The learned counsel for the plaintiff in error insist that the court erred in refusing to charge the jury, as requested, as to the effect which should be given to the evidence of an accomplice. The substance of the requests asked was that the circuit judge should instruct the jury not to convict the accused upon the evidence of an accomplice, unsupported by any other evidence in the case. In regard to this point we think the evidence in the first...

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