Shannon v. State

• Decision Date: 31 December 1923
• Docket Number: 23396
• Citation: 196 N.W. 635,111 Neb. 457
• Parties: MARY SHANNON v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

196 N.W. 635

111 Neb. 457

MARY SHANNON v. STATE OF NEBRASKA

No. 23396

Supreme Court of Nebraska

December 31, 1923

ERROR to the district court for Douglas county. CHARLES A. GOSS JUDGE. Affirmed: Sentence reduced.

AFFIRMED: SENTENCE REDUCED.

Jamieson O'Sullivan & Southard and Charles P. Rapp, for plaintiff in error.

O. S Spillman, Attorney General, Marcus L. Poteet and Lester L. Dunn, contra.

Heard before MORRISSEY, C. J., LETTON, DEAN and DAY, JJ., SHEPHERD, District Judge.

OPINION

SHEPHERD, District Judge.

Mary Shannon, the plaintiff in error, a vigorous young married woman of 38, broke into the quarters of an aged neighbor in the night-time and told her that she had come to finish her. In the struggle that ensued, as her victim attempted to push her away and to expel her from the house, plaintiff in error bit her finger so badly that her arm became infected and subsequently had to be amputated. It appeared that Mrs. Booth, the old lady assailed, had incurred the enmity of Mrs. Shannon by protesting when the latter beat her rugs so that the dust fell from them upon some newly-washed curtains which were drying upon the line, or so Mrs. Booth testifies.

Mrs. Shannon denies this incident, and says that she had scarcely any acquaintance with Mrs. Booth, and bore her no ill will whatever. She testified that she was not addicted to the use of liquor, but that on the occasion in question, owing to the fact that she was suffering from cramps and from painful menstruation, she had bought some corn liquor, and had drunk about a pint and three-quarters of it during the day preceding the assault. In consequence, she says, her mind was a blank from the time that she took her last drink, about 7 or 8 o'clock in the evening, till she found herself in jail the next morning. The liquor was bootleg stuff containing 1 per cent. of fuseloil, and very dangerous. A doctor testified that having taken it as she said, Mrs. Shannon would be unable to distinguish between right and wrong.

Plaintiff in error was duly charged with the crime of mayhem, and was tried, convicted and sentenced to five years in the penitentiary. She comes here assigning the following errors. (1) The verdict was contrary to law; (2) contrary to the evidence; (3) not sustained by sufficient evidence, the "same being less than proof of the defendant's guilt beyond a reasonable doubt;" (4) the court erred in giving its ninth instruction; (5) in refusing to give instruction 1 requested by the defendant; (6) in refusing to give instruction 2 requested by the defendant; (7) in refusing to give instruction 6 requested by defendant; (8) the state failed to prove the sanity of the accused beyond a reasonable doubt; (9) the state failed, after the defendant had interposed the defense of alcoholic insanity, to prove the sanity of the accused by evidence beyond a reasonable doubt; (10) the sentence is excessive.

While other errors are set forth in the petition in error, it is expressly stated in defendant's brief that she relies for reversal only upon the foregoing.

In the main the contentions of the plaintiff in error are two. First she asserts that the state stands in the position of one who rests his case upon a rebuttable presumption, completely rebutted. This would, if true, be sufficient to entitle her to reversal and discharge. When the defendant proved by her expert testimony, opinion evidence though it was, that the bootleg whiskey which she had taken robbed her of power to distinguish between right and wrong and rendered her an unconscious actor in the assault upon Mrs. Booth, in devolved upon the prosecution, if it had not already adduced affirmative proof of defendant's sanity at the time of said assault, to make such proof upon rebuttal. Such is the doctrine of the cases cited by the plaintiff in error. Such, in effect, was also the eighth instruction of the trial court, as follows:

"The defendant in this case has interposed the defense of temporary insanity, caused by the use of alcoholic stimulants. Upon this point you are instructed that the law presumes that every person is sane and it is not necessary for the state to introduce evidence of sanity in the first instance. When, however, any evidence has been introduced tending to prove that the condition of the mind of the accused was such, at the time of the commission of the act charged, that she could not be held legally responsible for her act, then the burden is upon the state to establish the fact of the accused's criminal responsibility for her act, the same as any other material fact to be established by the state beyond a reasonable doubt to warrant a conviction. The evidence upon this point you should consider the same as any other evidence introduced in the case, giving to it such weight as in your judgment it should receive."

This instruction is strictly according to the Utah case, State v. Brown, 36 Utah 46, 102 P. 641, upon which the plaintiff in error depends. But in that case it is said that all of the evidence, apart from the presumption, was to the effect that the accused was insane. In this case it is not so. Mrs. Shannon herself testified that a month or two before she bought and drank a pint of the same kind of liquor without becoming drunk. Mrs. Booth testified that Mrs. Shannon swore at her and threw slop on her steps, and that in addition to dirtying her curtains she told her that she did it purposely. There was enough in the case of the state in chief to indicate that the accused meditated the punishment of Mrs. Booth and prepared herself by resorting to liquor to administer it. If so, she could not escape the consequences on the plea that the liquor made her wild, because the premeditated intent goes through to the act. Kraus v. State, 102 Neb. 690, 169 N.W. 3.

Anyway, if supporting evidence be adduced, sufficient in connection with the presumption to sustain a finding that the accused knew what she was doing and had understanding enough to determine whether it was right or wrong, then and in such case the question of whether or not she was capable of forming an intent was for the jury. It is for the court to say, we think, only when it can decide with certainty, and as a matter of law, that the evidence on the point is so lacking in probative force that the jury should not be permitted to declare that it is convinced beyond a reasonable doubt of the truth of the charge.

But there was rebuttal tending to prove the sanity of the defendant. It must be remembered that the desk sergeant at the station testified that when Mrs. Shannon was brought in, the following conversation was had between them:

"A. I asked her what was the matter that she bit this woman's finger, and she says, 'Well, I had trouble there;' I turned to the captain at the time, and I says, 'This charge ought to be changed to mayhem;' and this Mrs Shannon says, 'Well,' she says, 'Mayhem be damned; I ought to have...