Prewitt v. State

• Decision Date: 24 November 1913
• Docket Number: 16,970
• Citation: 63 So. 330,106 Miss. 82
• Court: Mississippi Supreme Court
• Parties: B. F. PREWITT v. STATE

63 So. 330

106 Miss. 82

B. F. PREWITT v. STATE

No. 16,970

Supreme Court of Mississippi

November 24, 1913

APPEAL from the circuit court of Attala county, HON. J. A. TEAT Judge.

B. F Prewitt was convicted of assault and battery with intent to kill and appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Adams &amp Dobbs, attorneys for appellant.

Geo. H. Ethridge, assistant attorney-general, for state.

Counsel on both sides filed elaborate briefs too long for publication.

SMITH C. J. COOK, J., dissenting.

OPINION

SMITH, C. J.

This is an appeal from a conviction of the crime of assault and battery with intent to kill and murder. On the occasion in question appellant, who was a merchant in the town of Ackerman, was in the street near his store shooting a pistol. What then occurred can best be told in the language of the witness Chrismond, sheriff of the county and the person assaulted; there being no dispute as to the correctness thereof: "It was on the afternoon of the 31st of October; I heard some shooting in town; and I started on over there to investigate it; when I got there Mr. Prewitt was out on the street shooting promiscuously; when he saw me he hollered for me to go back, and when I didn't go back, he hollered and said he would kill me if I didn't. I went on anyway; had advanced only a few steps when he shot at me one time. I proceeded up near where he was at--he was telling me to stop all the time. I stopped and told him that I wasn't armed, and, that I hadn't come over for any trouble--just reasoning the matter with him--told him the circumstances, that I was over there in an official capacity, and that I demanded order on the streets; just talked to him as fast as I could; don't remember exactly what all I did say. He was standing behind a tree till after I told him that I was not armed; he then came out from behind the tree and shot me." There was evidence indicating that appellant was drunk at the time of the shooting. His sole defense was insanity, and there was some evidence in support thereof, consisting principally of the opinions of witnesses who had known him, and of the fact that his father, uncle and five other blood relatives had been insane. The acts of appellant other than the shooting of Chrismond, on which the opinions of these witnesses were based, were few in number and of such character that the jury was well warranted in finding that they were not inconsistent with the conduct of a sane man. We find no reversible error in the record, and only two of the assignments thereof require special notice.

After introducing evidence of the insanity of his father and other blood relatives, appellant asked two of the physicians who testified in the case "whether or not insanity is hereditary and transmissible," which question, on the objection of the state, the court declined to permit the witnesses to answer. The court might very properly have allowed this question to have been answered, but its declining so to do does not constitute a reversible error, if error, in fact, at all. That insanity is hereditary, as hereinafter explained, is a matter of common knowledge, and is therefore a fact not necessary to be proven. The court takes judicial notice of it.

The evidence of insanity among his blood relatives, which appellant had already introduced, was admissible solely on the ground that insanity is hereditary. At one time it seems to have been supposed that this fact must be proven in each case before evidence of insanity among the blood relatives could be received. Rex v. Tuckett, 1 Cox's Crim. Cas. 103. But we venture to say that no court of to-day would so hold. The fact seems now to be assumed by all of the courts and authorities without question. 1 Wigmore on Evidence, section 232; 1 Wharton & Stille, Medical Jurisprudence, section 576 et seq.; Baxter v. Abbott, 7 Gray (Mass.) 71; State v. Christmas, 51 N.C. 471.

To exclude facts from evidence which depend for their value upon the law of heredity for the reason that such law has not been proven is, or should be, as shocking to the judicial mind as the exclusion of facts from evidence depending upon the law of gravity for the reason that such law has not been proven. Heredity, "is a universal law of organic life," and is defined as "that biological law by which all beings endowed with life tend to repeat themselves in their descendants." 1 Wharton & Stille, Medical Jurisprudence, section 576.

But even if we are mistaken in this, any possible error in the ruling complained of was cured by the granting of appellant's first instruction, for "it cannot be too definitely stated," in the language of 14 Encyclopedia Brittanica (11th Ed.), p. 597, subtitle "Inheritance," "that it is not the insanity which is inherited, but only the predisposition to the manifestation of mental symptoms in the presence of a sufficient exciting cause," and, in the language of the court in Baxter v. Abbott, 7 Gray (Mass.) 71, the admissibility of evidence of insanity of blood relatives "rests upon the ground of the hereditary character of insanity; that a predisposition to the disease is frequently transmitted from parent to child. With such predisposition, the malady may not show itself in the child; for the child may not be exposed to any exciting cause. But with such hereditary taint, insanity supervenes from slight causes--causes apparently wholly inadequate to affect a mind without the predisposition." This first instruction is as follows: "The court instructs the jury that it has been proven in this case by undisputed testimony that there is insanity in the family of the defendant, and that a predisposition or susceptibility to insanity on the part of the defendant has been proven, and that in your consideration of this case you should treat these facts as established."

Dr. B F. Prewitt, an uncle of appellant, was sworn as a witness in his behalf, and gave as his opinion, based on his personal knowledge and observation of appellant, that he was insane at times. He was not asked and did not state when and for what periods of time appellant had appeared to him to be insane. He was then qualified as an expert on insanity and was asked if he had heard all of the testimony in the case, and he replied that he had heard "some of it," without stating what parts of it he had heard. He was then asked the following question, which was objected to by the state and the objection sustained: "From the testimony you have heard, and about the shooting as it occurred out there in front of Prewitt's store, his manner and conduct on that occasion, his conduct in his home, his statement on the way to jail, his statement to the deputy marshal at the jail, taking all this testimony and facts stated about his manner of shooting inside of his store and promiscuously up and down the street and in his yard, what would you say about the defendant, at the time he shot Mr. Chrismond, as to his sanity or insanity?" After some further examination he was then...