State v. Austin

• Decision Date: 17 January 1905
• Docket Number: 8947
• Citation: 73 N.E. 218,71 Ohio St. 317
• Parties: The State Of Ohio v. Austin.
• Court: Ohio Supreme Court

73 N.E. 218

71 Ohio St. 317

The State Of Ohio v. Austin.

No. 8947

Supreme Court of Ohio

January 17, 1905

Trial for homicide - Defense of insanity - Burden of proof on defendant - Presumption of sanity - Effect of proof of insanity prior to crime - Does not shift burden, when - Laws of evidence - Criminal law.

1. Where in a trial for homicide the insanity of the accused is set up as a defense, the burden of establishing such defense by a preponderance of the evidence rests upon the defendant.

2. The law presumes every person sane until the contrary is shown and in a criminal case this presumption of sanity serves the state as the full equivalent of express proof until such time as it is made to appear by a preponderance of the evidence that the defendant was insane at the time of committing the crime alleged against him.

3. On the trial of A, indicted for the crime of murder, it having been proved that prior to the commission of the alleged homicide he had twice been adjudged insane and committed to an asylum, but was discharged therefrom the last time nearly two years previous to the time of the homicide, counsel for defendant requested the court to give to the jury the following instruction: "Proof of prior insanity throws upon the state the burden of proving the crime perpetrated during a lucid interval. It defeats the legal presumption of sanity and creates a legal presumption of continued lunacy." Held: Such instruction was properly refused.

The facts of this case so far as they are pertinent to the question herein presented and determined are stated in the opinion.

Mr Harry W. Miller, attorney for plaintiff in error, cited and commented upon the following authorities:

State v. Scott, 36 L.R.A. 731; State v. Spencer, 21 N. J. Law, 916; Loeffner v. State, 10 Ohio St. 598; Bond v. State, 23 Ohio St. 349; Bergin v. State, 31 Ohio St. 111; Kelch v. State, 55 Ohio St. 146; Davis v. United States, 160 U.S. 469; 40 Law Ed., 499; Wheeler v. State, 34 Ohio St. 394; Starkie on Evidence, 379 and 406; 2 Bishop on Criminal Procedure, sec 674; Wright v. Wright, 139 Mass. 177; Powers v. Russell, 13 Pick, 76; Crowninshield v. Crowninshield, 2 Gray, 529; Underhill on Criminal Evidence, sec. 156.

Mr. Theo K. Funk and Mr. Cecil S. Miller, attorneys for defendant in error, cited and commented upon the following authorities:

Clark v. State, 12 Ohio 483; Bond v. State, 23 Ohio St. 349; Bergin v. State, 31 Ohio St. 111; Kelch v. State, 55 Ohio St. 146; State v. Bowsher, 7 Dec. Re., 442; 3 Law Bull., 190; 11 Greenleaf on Evidence, sec. 371; 1 Wharton's American Criminal Law, sec. 56; 2 Best on Evidence, 688; Sprague v. Duel, 1 Clarke (N. Y.), 90; Saxon v. Whitaker, 30 Ala. 237; Breed v. Pratt, 18 Pick. (Mass.), 115; Titlow v. Titlow, 54 Pa. 216; Jackson v. Van Dusen, 4 Am.Dec. 336; Wright v. Wright, 139 Mass. 180; McNett v. Cooper, 13 F. 586; State v. Bartlett, 80 Am.Dec. 154; Davis v. Untied States, 160 U.S. 469; Commonwealth v. McKie, 1 Gray (Mass.), 61; Sackett's Instructions to Juries, 597; Menkins v. Lightner, 18 Ill. 282; Blackburn v. State, 23 Ohio St. 146; Wheeler v. state, 34 Ohio St. 396; 1 Greenleaf on Evidence, sec. 42; Peasler v. Robbins, 3 Metc., 164; Redfield on Wills, 112; Malone's Criminal Briefs, 148; Wade v. state, 37, 189; Buswell on Insurance, sec. 187; State v. Gardiner, Wright, 392; Cotell v. State, 5 Circ. Dec., 478.

CREW J.

At the September term, 1903, of the court of common pleas of Scioto county, Ohio, the defendant in error, Levi S. Austin, was indicted, tried and convicted of the crime of murder in the first degree for the killing of one Harry Hornung on the twenty-eighth day of August, 1903. A motion for a new trial was duly filed by the defendant, Levi S. Austin, which motion was upon consideration thereof by the trial court overruled, and the jury impaneled in said cause having included in its verdict a recommendation of mercy the defendant was thereupon, on the overruling of said motion, sentenced by the court to imprisonment for life in the Ohio penitentiary. At the trial in the court of common pleas there was no conflict or controversy in the evidence as to the fact that the defendant, Austin, on the day named in the indictment, August 28, 1903, shot and killed said Harry Hornung. The killing was not disputed, but under the plea of not guilty the defense was interposed that at the time of such killing the defendant was then insane. On petition in error to the circuit court the judgment of the court of common pleas was reversed and the verdict of conviction was set aside for the reason and on the sole ground as stated in the entry of reversal, that said court of common pleas erred in refusing to give to the jury the following instruction requested by the defendant, viz.: "Proof of prior insanity throws upon the state the burden of proving the crime perpetrated during a lucid interval. It defeats the legal presumption of sanity and creates a legal presumption of continued insanity." To reverse this judgment of reversal the state prosecutes this proceeding in error. Whether the instruction so asked by defendant is a proper instruction and correctly states the rule of law upon the propositions involved therein and should therefore have been given to the jury in the form requested, is the question presented here for our determination. It must now be taken as the well established rule of law in this state, because of the numerous and uniform decisions of this court upon that subject, that in a criminal case when the insanity of the defendant is pleaded or relied upon as a defense that such defense is affirmative in character and the burden of maintaining or establishing the same by a preponderance of the evidence rests with the defendant. Loeffner v. The State, 10 Ohio St. 598; Bond v. The State, 23 Ohio St. 349; Bergin v. The State, 31 Ohio St. 111; Kelch v. The State, 55 Ohio St. 146.

The authorities would seem also to be in entire accord upon the proposition that where a person is indicted and prosecuted for the commission of a crime, in order to make the insanity of the accused available and effective to him as a defense such insanity must be shown to exist at the very time of the commission of the act complained of. The law requires that the insanity proved, in order that it may be defensive, shall relate to the time of the commission of the alleged criminal act, and proof of the insanity of the defendant at a time prior thereto cannot of itself exempt him from punishment or acquit him of criminal responsibility. While it is entirely competent in a criminal case where the sanity of the accused is put in issue to show his mental condition both before and after the time of the commission of the alleged criminal act, yet from such evidence of his previous or subsequent mental condition no legal presumption arises that he was insane at the time he committed the criminal act, and such evidence is proper for the consideration of the jury only in so far as it reflects or throws light upon, or may aid the jury in determining, the question of whether in fact the insanity of defendant existed at the time of the alleged criminal act. It appears from the record in this case that the defendant in...