Schuman v. State

• Decision Date: 03 February 1913
• Citation: 153 S.W. 611,106 Ark. 362
• Parties: SCHUMAN v. STATE
• Court: Arkansas Supreme Court

153 S.W. 611

106 Ark. 362

SCHUMAN v. STATE

Supreme Court of Arkansas

February 3, 1913

Appeal from Garland Circuit Court; Calvin T. Cotham, Judge affirmed.

Judgment affirmed.

William C. Bouic, for appellant.

1. The conduct of the prosecuting attorney in recalling the witness Bluitt and questioning him as to specific acts, and particularly the question as to whether or not he had been convicted of petit larceny, etc., was an effort to discredit the witness before the jury by improper questions, and was necessarily prejudicial; and the mild statement of the court was not sufficient to eradicate the injurious effect of it. Id. (State v. Coulter); 100 Ark. 561.

2. Likewise, his conduct in recalling the witness Coulter for the purpose of asking him if he was not in jail under indictment at a time previously testified to by him, was an effort to destroy his credit by insinuation which was improper and prejudicial. 133 Am. St. Rep. 780.

3. The testimony offered as to statements made by the deceased relative to the habits of appellant was competent and should have been admitted. 85 Ark. 536; 73 Ark. 500; 34 Ark. 735; 157 Mass. 180; 31 N.E. 961; 131 Am. St. Rep. 787.

4. The witnesses for the State on the question of defendant's sanity should have been required to state the facts upon which they based their opinions, as was the case with the witnesses for the defendant on that question.

5. Expert witnesses should be required to qualify as experts before admitting their opinions as to a defendant's sanity. In this case, one physician did not claim to know what insanity was; another based his opinion upon text books and not upon experience, and the third stated that he had never studied the subject of nervous diseases. The last named witness was erroneously permitted to testify as to defendant's sanity with no previous knowledge of him from having seen him for about three minutes while he was being searched at the jail, and having then followed to his cell and observed him through a peep hole for about twenty-five minutes, having no conversation with him whatever. 1 Wharton & Stilles, Med. Jur. 879.

6. The court's instruction "A" was erroneous, in that it incorrectly placed the burden on the defendant. 1 Wharton & Stilles, Med Jur. 327; 160 U.S. 469; 61 Am. Dec. 410; 58 Neb. 225;. 1 Gray, 61; 17 Mich. 9; 56 Neb. 309, 76 N.W. 754; 80 Am. Dec. 154.

William L. Moose, Attorney General, and Jno. P. Streepey, Assistant for appellee.

1. On cross examination it was proper for the prosecuting attorney to ask the witness if he had ever been convicted of an infamous crime, if he had any reasonable ground to believe that he had been so convicted. 74 Ark. 397, 400. If there was any error in asking the question objected to, and that is not conceded, it was harmless error and was cured by the court's admonition. The testimony was admissible for the purpose of testing the credibility of the witness. 44 Ark. 122; 63 S.W. (Tex.), 312; 98 Am. St. Rep. 932, 933; 100 Ark. 321, 324; Id. 199, 202; 103 Ark. 87.

2. The withdrawal of the request to recall the witness Collier, and the admonition of the court to the jury were sufficient to eliminate any error contained in the statement as to his being under indictment.

3. The evidence offered as to statements of the deceased as to the habits of the defendant was pure hearsay and clearly inadmissible. 73 Ark. 152, 158; 12 Cyc. 429; 14 Cent. Dig. §§ 937, 947; 6 Id. § 415 (1).

4. There was no error in permitting the nonexpert witnesses offered by the State to testify as to defendant's sanity. 54 Ark. 588; 61 Ark. 241; 38 L. R. A. (Ga.) 721.

5. The court did not err in permitting the expert witnesses offered by the State to testify as such. 64 Ark. 523; 39 L. R. A. (Tex.), 306.

6. Instruction "A" was correct. This court has long held to the rule that a defendant who pleads insanity must prove it by a preponderance of the testimony. 40 Ark. 523; 50 Ark. 330, 333; Id. 511, 519; 54 Ark. 588, 602.

OPINION

SMITH, J.

The defendant, Clarence A. Schuman, was indicted by the grand jury of Garland County at its September term, 1912, for murder in the first degree. Upon the trial of said cause, the defendant admitted the killing and as a defense plead insanity at the time of the killing, produced by the constant and excessive use of morphine. The proof showed that the defendant and the deceased were man and wife, but at the time of the killing were living apart, and that on the day of the tragedy, the appellant was in the home of a neighbor of the deceased, where he was engaged in staining the floors; that he went to his work unarmed and while there and prior to the time of the shooting, he saw the deceased but continued his work until about two hours later, when he saw deceased in her back yard, and he then went into the house where he had been working and secured a pistol which was lying on the dresser and went into the yard of her house and shot her several times. The proof tended to show that prior to the killing, defendant had made threats against the life of the deceased, and he himself stated after the killing that he told his wife, after their marriage, that if she ever left him he would kill her. When defendant advanced upon the deceased with the gun and she saw that he was about to do her violence, she begged him to spare her life and said to him, "Sweetheart, don't shoot, I will do anything you want;" but he said, "No, you have told me that before and I do not believe you." It appears that appellant and his wife had been married only about a year, during which time they had had quite a good deal of trouble, and it had become necessary for her to have him confined in jail under a peace bond, and she had commenced an action for divorce against him.

Defendant did not question the character of the deceased, but it is conceded that she was living honorably, and made an honest living as washer woman, at which employment she was engaged when killed. No attempt is made to justify this killing, but the defendant seeks to excuse himself by his plea of insanity, and it may be said that if he can not be excused upon that plea no justification whatever can be claimed. The jury returned a verdict, finding the defendant guilty of murder in the first degree, and an appeal was taken from the judgment of the court pronounced thereon.

The motion for a new trial assigned many alleged errors for the reversal of the case, but those now relied upon are as follows: First, in permitting an improper cross examination of defendant's witness, Charles Bluitt; second, likewise an improper cross examination of defendant's witness, Collier; third, in refusing to permit defendant to prove certain statements of the deceased, concerning defendant's addiction to the use of morphine, immediately preceding the killing; fourth, in permitting nonexpert witnesses, offered by the State, to testify as to the sanity of the defendant; fifth, in giving and refusing certain instructions; sixth, in failing to admonish the prosecuting attorney and rebuke him for interrupting counsel for the defendant and because of certain alleged improper remarks of the court when called upon so to do.

The cross examination of the witness Bluitt, complained of consists of these questions and answers:

Q. In March, 1911, were you convicted of petit larceny?

Mr. Bouic: I object, because the record shows that he was not convicted and Mr. Wood knows that he was not.

The Court: Of course, if there is no evidence to base it on.

Mr. Wood: I want to ask if he was not convicted and afterwards the judge set it aside on account of his being sick.

A. No, sir.

Mr. Bouic: I wish the court to admonish the jury and I want to save an exception to the question, because the records show that the charge was dismissed and he was acquitted of that charge.

Mr. Wood: That is what the record shows.

The Court: The jury will not consider that.

Mr. Bouic: I want to save an exception to the fact that the prosecuting attorney after asking the question stated that the record shows that it had been dismissed, and he had been acquitted, and the question was improper and was asked for the purpose of biasing and prejudicing the jury against the witness.

Mr. Wood: Let the record show, too, that I wanted to--

Mr. Bouic: I object to that statement in the presence of the jury about it.

Mr. Wood: I want the record to show that I wanted to show the state of facts as indicated by the question.

The Court: The court will sustain the objection to a further examination on that particular point.

If this question was an improper one, it was excluded from the jury and the jury admonished not to consider it. But it was held in the case of Turner v. State, 100 Ark. 199, 139 S.W. 1124, that where even an accused became a witness in his own behalf, he may be impeached on cross examination by questions which show that he had been formerly convicted of an infamous crime.

The error complained of in the cross examination of the witness Collier is as follows: After the witness Collier had left the stand the following colloquy took place:

Mr. Wood: I would like to call Mr. Collier back and ask him if he is under indictment now.

Mr. Bouic: We will concede that. I object to that statement being made in the presence of the jury.

Mr. Wood: We will withdraw the request.

Whereupon the court said: "The jury will not consider that."

The witness had admitted in his direct examination that he had been confined in jail since defendant had been arrested, this proof being made upon the...