McHargue v. State
| Decision Date | 11 May 1923 |
| Docket Number | No. 24093.,24093. |
| Citation | 139 N.E. 316,193 Ind. 204 |
| Court | Indiana Supreme Court |
| Parties | McHARGUE v. STATE. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Delaware County; Wm. A. Thompson, Judge.
Hallett McHargue was convicted of murder, and he appeals. Reversed with directions for new trial.
George W. Cromer, of Muncie, and Montgomery & Montgomery, of Seymour, for appellant.
U. S. Lesh, Atty. Gcn., and Mrs. Edward Franklin White, Deputy Atty. Gen., for the State.
Appellant was charged, by indictment, with murder in the first degree, and was convicted and sentenced to imprisonment for life. The only questions presented for review arise upon appellant's exceptionto the order overruling his motion for a new trial. Appellant entered a plea of not guilty, and a special plea that at the time of committing the act charged as a crime he was of unsound mind, and the state filed a reply of denial to the special plea. The undisputed evidence proved, without contradiction, that at the time and place charged in the indictment appellant came into a factory where he was employed, walked quietly to a point near where a fellow workman was engaged in oiling a machine, spoke the name of the other workman, and as he turned half around, shot him twice, and after he fell to the floor ran to where he lay and shot him four times more, killing him, and that all his victim said to him was, “Don't do that.” There was also evidence tending to prove that at that time, and for more than a year before, appellant was and had been a person of unsound mind, suffering from a mental disorder classified as “psychosis dementia praecox, paranoid type,” and also evidence to the contrary, tending to prove that he was of sound mind. The only defense attempted was on the ground of his alleged unsoundness of mind, and all the questions for our consideration grow out of rulings made by the trial court in relation to the issue joined on the special plea.
[1] Before the trial commenced a verified motion for a change of judge was filed, stating that the affiant was “of counsel for defendant,” and made the affidavit, in his behalf, “that defendant is of unsound mind and by his counsel has entered a special plea in writing of unsoundness of mind in said cause,” and that “affiant further swears that he believes defendant cannot receive a fair and impartial trial” before the judge before whom the cause is pending, “owing to the bias and prejudice of said judge against said defendant, as such defendant in said cause, which bias and prejudice of said judge against said defendant affiant swears now exists,” and concluding with a prayer for a change of judge “to the end that said defendant may be tried by disinterested triers.” Nothing was stated as to the character of defendant's alleged unsoundness of mind, or the degree to which he was incapacitated, except only that he “is of unsound mind.” The motion was overruled, which ruling is first challenged. The statute provides that “the defendant may show to the court by affidavit that he believes that he can not receive a fair trial, owing to the bias and prejudice of the judge against him, *** and demand to be tried by disinterested triers.” Burns' 1914, § 2074; Acts 1905, c. 169, p. 628, § 203.
This statute, in substantially the same language, has been in force in Indiana nearly a century, but we are not advised that any motion for a change of judge in a criminal case has previously been made which did not recite that the defendant “believes that he cannot receive a fair trial” before the judge named, “owing to the bias and prejudice” of said judge, to the existence of which bias and prejudice the defendant makes oath.
But repeatedly similar applications have been made in civil actions on motions verified by the attorney or agent of the party asking the change of judge, under a statute providing for a change of judge “when either party shall make and file an affidavit of the bias, prejudice, or interest of the judge before whom the said cause is pending.” Burns' 1914, § 422, subd. 7; R. S. 1881, § 412; 2 R. S. 1876, p. 119, § 207. And in every such case the verification by an attorney or agent has been held insufficient. Stevens v. Burr, 61 Ind. 464;Stevens v. Wagner, 64 Ind. 599;Heshion v. Pressley, 80 Ind. 490, 492;Firestone v. Hershberger, 121 Ind. 201, 202, 22 N. E. 985;Wiltfong v. Schafer, 121 Ind. 264, 266, 267, 23 N. E. 91;Fidelity, etc., Co. v. Carroll, 186 Ind. 633, 635, 117 N. E. 858.
Except as modified by defendant's alleged unsoundness of mind the same question arose in Illinois under a statute reading (in part) as follows:
R. S. Ill. 1845, p. 528, § 5; 2 Hurds' R. S. Ill. 1921, c. 146, §§ 18, 20, p. 3229.
In affirming the judgment in a criminal case the Supreme Court of Illinois said:
McCauley v. People, 88 Ill. 578.
Counsel urge the necessity of permitting some one to act for the defendant, because of his alleged unsoundness of mind. But no attempt was made to state facts in the affidavit showing incapacity in any other than a legal sense. The defendant has not been adjudged of unsound mind, and even if he had been so adjudged he is not shown to have been incapable of acting on his own behalf in some kinds of court proceedings. Cunco v. Bessoni, 63 Ind. 524, 526;Berry v. Berry, 147 Ind. 176, 46 N. E. 470;Chase v. Chase, 163 Ind. 178, 184, 189, 71 N. E. 485.
He had entered a general plea of not guilty, as well as a special plea that at the time when the acts for which he was on trial were done, eight months before, he was of unsound mind. And if we were permitted to consult the evidence in order to interpret the general statement that he was of unsound mind, it would appear without dispute that he had been earning a living, managing his own affairs, and occasionally writing letters, without recent challenge of his ability in those matters up to the time of the killing. There was no suggestion from any source that his alleged mental unsoundness was in the nature of idiocy.
As to whether complete incapacity, if shown, would make any difference in his right to act by attorney in this matter we express no opinion. No error was committed in overruling the motion for a change of venue from the judge.
[2][3] It is complained that each of two instructions told the jury, in effect, that if they believed from the evidence, beyond a reasonable doubt, that the defendant was of unsound mind at the time of the killing, or that he was not guilty, he should be acquitted, and thereby implied that no less certain proof of his insanity would entitle him to an acquittal. The instructions read as follows (our italics):
(18) If you shall believe from the evidence in this case beyond a reasonable doubt that the defendant killed one George Kling on the 23d day of December, 1920, in manner and form as charged in the indictment, and, if at the very time of the killing, the defendant was of unsound mind, or insane from any cause, he should be acquitted. In this connection, however, the court instructs you that, although there may have been some mental derangement on the part of the defendant at said time, still if you should find that defendant at the time of said killing had sufficient mental capacity to know and distinguish right from wrong, and also sufficient mental capacity to adequately comprehend the nature and consequences of his act, and a mind sufficient to deliberate and premeditate and form an intent and purpose to kill and had unimpaired will power sufficient to control any impulse he may have had to commit crime, he would be criminally liable for said act, and is not entitled to acquittal on the ground of mental incapacity, or unsoundness of mind.
(26 1/2) The duty of counsel and of the court has now been performed. The counsel for the state and the defendant have argued ably to you the questions involved in this case. The court has endeavored to rightfully advise you in regard to the law of the case and there confronts you now the final and important duty of pronouncing upon the guilt or innocence of the defendant. I submit this case to you with confidence that you will faithfully and correctly discharge the grave duty now resting upon you.
You will bear in mind that the liberty of the accused should not be trifled with or taken by careless and inconsiderate judgment, but if after a careful consideration of the law and the evidence in the case you are satisfied beyond a reasonable doubt that the defendant is not guilty you should return your verdict accordingly; but if, on the other...
To continue reading
Request your trial