Kearney v. State

• Decision Date: 24 November 1890
• Citation: 68 Miss. 233,8 So. 292
• Court: Mississippi Supreme Court
• Parties: FRANK P. KEARNEY v. THE STATE

8 So. 292

68 Miss. 233

FRANK P. KEARNEY v. THE STATE

Supreme Court of Mississippi

November 24, 1890

FROM the circuit court of Warren county, HON. J. D. GILLAND Judge.

The case is stated in the opinion.

Reversed and remanded.

T. C Catchings, for appellant.

It was error to allow Dr. Quin, a witness for the defense, to be asked and to answer the question whether the accused had ever killed a man before. The mere fact that Kearney may have killed another man should not in the least degree militate against the idea that he was a peaceable man, for non constat such killing may have been in self-defense and justifiable. Such a course of examination was most prejudicial to the accused. He did not put his character in issue, and if he had, it was not competent to prove that he had killed another man. Bishop Cr. Pro. § 1120.

2. A second fatal error was committed in permitting the district-attorney to interrogate an expert witness as to his opinion of a man's sanity or insanity based on hypotheses not supported by the testimony. The hypotheses assumed by the questions were that defendant had killed other parties; that after the shooting he walked down to a bar-room and called for a drink, got it, and said, I have killed so and so meaning the deceased; that he went home and was carried to jail the next morning, and gave a detailed account of the killing to another, immediately afterwards, having seen his lawyer, stating to others that he had been advised by his lawyer not to make any statements. Such questions, and the answers thereto, could not fail to confuse the jury and mislead them to defendant's prejudice. Hypothetical questions must be based on the proven facts or testimony tending to prove facts. 1 Thompson on Trials, § 666.

The fact that they are asked on cross-examination does not alter the rule. Ib. § 628.

3. The 10th instruction directed the jury plainly, and without circumlocution, to find defendant guilty if they believed he killed Fossett, provided only they believed he was sane. This eliminates entirely the question of a felonous intent as an ingredient of murder. The single fact of killing is made sufficient without malice. The test as to the validity of the instruction eliminates the fact of insanity from the case; and it will be seen that the court directs a verdict of guilty. This cannot be done. The accused has a right to have his case passed upon by a jury. The court may define the crime, and charge fully as to the law, and point out all legal presumptions presented, but it can go no further. Cooley Con. Lim. 393; 2 Thompson on Trials, § 2149.

4. The 13th instruction is a direct charge upon the weight of the testimony, and besides it is not correct. Cunningham v. The State, 56 Miss. 269.

The court cannot single out the enormity of the crime, and call special attention to it. In Cunningham's case, the principal fact relied on to show insanity was the enormity of the homicide, and the court said the defendant was entitled to have the jury left free to determine the question of sanity unembarrassed by erroneous instructions. The enormity of the homicide is often the only and the best evidence of insanity, as if a man should without warning cut the throat of his most intimate friend.

5. By the 16th instruction a wrong test of criminal responsibility was set up. Wharton on Medical Jurisprudence, §§ 155, 582.

The true test is whether one charged with crime is capable of forming a criminal intent, or in other words, of knowing right and wrong. By the instructions the jury are told that one, although morally insane, that is, without conceptions of right or wrong, may be convicted if he knew he was violating a law of the land. This overrules all the authorities and is supported by none. Besides this instruction directly conflicts with another wherein the jury are told that the sole question is whether the defendant at the time of the killing was capable of knowing a rightful from a wrongful act.

L. W. Magruder, on the same side,

Submitted a brief discussing at length the evidence, and on the instructions passed on by the court making the following points:--

By the 10th instruction the court practically told the jury to convict if it believed the accused was sane. This was an arbitrary usurpation of the province of the jury. However clear and indisputable the evidence of guilt, however barren of justification, the question of guilt is one of fact as to which under the constitution none but the jury can speak. 2 Thomp. Trials, § 2149.

The 13th instruction is on the weight of evidence. It singles out the one circumstance, the enormity of the crime, and declares the jury are not warranted from this in finding a verdict of guilty. It is true as a matter of law it might not be presumed from this that the accused was innocent, but that is a different proposition from declaring that the jury may not base a verdict on it. Cunningham v. The State, 56 Miss. 269.

The 16th instruction sets up a false test of criminal responsibility, viz., knowledge of the illegality of the act. The true test is capacity to distinguish between right and wrong. Wharton Med. Jur. §§ 155, 382, 582.

The hypothetical question put to the witness Purnell was plainly incompetent as embracing facts not in evidence. It was equally wrong to allow evidence that accused had on a former occasion killed a man. This does not tend to prove that his general reputation for peace was not good. Bish. Cr. Pro. § 1120.

L. W. Magruder, for appellant, made an oral argument.

T. M. Miller, attorney-general, for the state.

OPINION

COOPER, J.

The appellant has been convicted of the murder of James Fossett, and sentenced to capital punishment. The defense principally relied on in the court below was that, at the time of the homicide, appellant was insane by reason of an attack of mania a potu, resulting from prolonged and excessive use of intoxicating liquor. Many errors are assigned, but we note only such as may be of probable importance in the further prosecution of the indictment.

On the trial of the cause, Dr. R. A. Quin was introduced as a witness by the defendant to prove the character of the defendant for peace or violence, and also as an expert to prove the symptoms and characteristics of mania a potu. On cross-examination by the district-attorney, and over the objections of the defendant, the district-attorney was permitted to ask the witness the following question: "Do you know whether or not he [the defendant] has ever killed a man before?" And over like objection the witness was permitted to answer: "I have heard that he had." The defendant then moved to exclude the question and answer, which motion was by the court denied. This testimony, if admitted at all, must be so either because it was competent as tending to show the intent with which the accused shot Fossett or to attack his character for peace, or to disprove the defense of insanity. If there anywhere appeared in the record anything to suggest that the purpose of the testimony was to show that the declaration of the accused, testified to by one witness for the state, at the instant of the killing, "this is the third son of a bitch I have got," was a sane remark, relating to actual occurrences of the past, then remembered by the accused, a different question would be presented for consideration. The defense of insanity opens a broad field of inquiry, and much evidence which would otherwise be incompetent is admissible, because of the nature of the issue presented. The defendant, claiming incapacity for crime at the particular time of the homicide, subjects all that he then said and did to such scrutiny and investigation as will show whether he then recognized and understood his relations to society, and the...