State v. Barry

• Decision Date: 30 December 1902
• Docket Number: 6731
• Citation: 92 N.W. 809,11 N.D. 428
• Parties: STATE v. WILLIAM BARRY
• Court: North Dakota Supreme Court

92 N.W. 809

11 N.D. 428

STATE v. WILLIAM BARRY

No. 6731

Supreme Court of North Dakota

December 30, 1902

Appeal from District Court, Cavalier County; Kneeshaw, J.

William Barry was convicted of murder, and appeals. Reversed.

Judgment set aside, and a new trial awarded.

Tracy R. Bangs, for appellant.

Clarence Mears had known Barry since 1892. Had business relations with him in 1898 and 1899. Saw him frequently since 1898, and had talked with him. Saw him on January 3rd, and recounted his observations to the jury. It was error to exclude his opinion as to defendant's sanity. Bolling v. State, 16 S.W. 658; Jamieson v. Peo., 34 N.E. 486; Peo. v Sanford, 43 Cal. 29; Peo. v. Wredden, 59 Cal 392; Peo. v. Lewis, 22 P. 241. In his instruction the court read to the jury § 6814, Rev. Codes describing persons incapable of crime, and omitted to read in that section Subd. 6 thereof, as follows: "Persons who commit an act or make an omission, otherwise criminal or punishable, without being conscious thereof." At the close of the case the court's attention was called to this omission by a request that he charge the jury in the following language: "If you find that the defendant was not conscious of the act which resulted in the death of Andrew Mallem, you must acquit the defendant. " This request was refused because not presented in time, and as substantially covered by the general charge. § 6814, Rev. Codes. The court erred in charging the jury as a matter of law "that if you believe the evidence of the prosecution as to the killing, that the defendant is guilty of murder as charged in the information or he is innocent of any crime." Kearney v. Cooper, 17 P. 782; Peo. v. Webster, 39 Hun. 398, 13 N.Y.S. 414. The charge should be free from intimating any opinion as to the weight of the evidence. State v. Whitney, 7 Ore. 386; Benedict v. State, 14 Wis. 424; Snyder v. State, 59 Ind. 105; State v. Bidge, 84 N.W. 518; Peo. v. Lington, 32 Hun. 461; Peo. v. Cogwill, 29 P. 228; Stokes v. Peo., 53 N.Y. 164; McKenna v. Peo., 81 N.Y. 360; Rice v. State, 3 Tex.App. 451; Peo. v. Johnson, 39 P. 622; 14 Cent. Dig. § 1732. The court erred in instructing the jury that "in this case there is very little comment required from the court except upon one question, the others being hardly matters of dispute. That the defendant struck Mallem is abundantly proved, if you believe the testimony of the state in this case. That the wound caused his death has been testified to by the surgeons most competent to speak, and they are uncontradicted." §§ 8176, 8217, Rev. Codes; State v. Asbury, 37 La.Ann. 124; 14 Cent. Dig. § 1731; Peo. v. Dick, 34 Cal. 663; Peo. v. Roberts, 55 P. 137; State v. Lightfoot, 78 N.W. 41; State v. Whitney, 7 Ore. 386; Peo. v. Lee, 15 P. 322; State v. Porter, 38 N.W. 514; State v. Hecox, 83 Mo. 531; State v. Austin, 80 N.W. 303; State v. Mackey, 6 P. 648; Ty. v. Kay, 21 P. 152. The court's instruction that a number of witnesses testified that defendant had admitted forming an idea to kill the deceased, and that he struck him on the neck with a knife--causing his death--was also erroneous as expressing an opinion as to the weight of evidence. Snyder v. State, 59 Ind. 105; Brewster v. State, 63 Ga. 639; Peo. v. Kindleberger, 34 P. 852; Thomp. Tr. § 2330. It was also erroneous as singling out certain evidence, and ignoring other evidence of equal importance. Logg v. State, 92 Ill. 598; Hoge v. Peo., 6 N.E. 796; Williams v. State, 65 N.W. 783; Peo. v. Clark, 62 N.W. 1117. The court erred in instructing the jury that the defense of insanity has been abused and brought into discredit as the last resort in cases of unquestionable guilt, and that it has been an excuse to juries for acquittal when their own and public sympathy have been with the accused, especially when the provocation to homicide has excused it according to public sentiment. This language was calculated to prejudice the jury against the defense of insanity. It was an expression of opinion that the defendant was guilty and had resorted to an unwarranted defense. Simmons v. State, 62 Miss. 243; Dawson v. State, 62 Miss. 241; 14 Cent. Dig., § 1837; Spencer v. State, 50 Ala. 124; Peo. v. Kelly, 35 Hun. 295; Walker v. State, 37 Tex. 366; Albin v. State, 63 Ind. 598, 14 Am. St. Rep. 43, and note; Aszam v. State, 23 N.E. 123. An instruction that assumes the exitsence of a fact which should be left to the jury for ascertainment, is erroneous, and is not cured by a general instruction that the jury are the exclusive judges of all questions of fact, and that the burden was on the state to establish the allegations of the indictment beyond a reasonable doubt. State v. Hatcher, 44 P. 584; Belt v. Peo., 125 Ill. 584; Cannon v. Peo., 30 N.E. 1030. The court erred in instructing the jury that "while the accused party cannot make evidence for himself by his subsequent declarations, on the other hand he may make evidence against himself, and when these declarations amount to admissions against himself, they are evidence to be considered by the jury." 1 Greelf. Ev., § 201; State v. Laliyer, 4 Minn., 281; State v. Young, 24 S.W. 1038; Blackburn v. State, 23 O. St. 146; State v. Martin, 28 Mo. 530; State v. Brooks, 12 S.W. 633; State v. Brown, 16 S.W. 406; Jones v. State, 25 Am. St. Rep. 715; Peo. v. Strong, 30 Cal. 151; Griswold v. State, 24 Wis. 144; Wharton's Crim. Ev., § 688. To single out a party and discredit his testimony, to place him upon a different plane from that of other witnesses, to tell the jury, as was done in this case, that the testimony of the defendant should not be weighed by them, except by short measure, was unfair to the defendant and prejudicial to his rights. Unruh v. State, 105 Ind. 117; Hicks v. U.S. 150 U.S. 442; Peo. v. Pearsall, 15 N.W. 98; State v. White, 39 P. 160; State v. Nordstrom, 7 Wash. 506; Harris v. Peo., 82 Ill. 430; Peo. v. Van Eman, 45 P. 522; State v. Hoy, 86 N.W. 98; Ty v. O'Hara, 1 N.D. 30. The court erred in instructing the jury "that no verdict could safely be rendered upon the evidence of the accused party only, under such circumstances. If it were recognized, by such a verdict, that a man on trial for his life could secure an acquittal by simply testifying himself that he had committed the crime charged under a delusion, an inspiration, an irresistible impulse, this would be to proclaim an universal amnesty to criminals in the past, and an unbounded license for the future, and the courts of justice might as well be closed." Greer v. State, 53 Ind. 420; State v. Bird, 8 N.E. 14; Buckley v. State, 62 Miss. 705; State v. Johnson, 16 Nev. 36; State v. Holloway, 23 S.E. 168; Ryder v. Peo., 110 Ill. 11; Newman v. Peo., 63 Barb. 630; Com. v. Pipes, 27 A. 839. Defendant's request for an instruction to the jury "that if the defendant was not conscious of the act, he should be acquitted," was not too late but in proper time. Preston v. State, 26 So. 736; Peo. v. Demasters, 39 P. 35; Brooks v. State, 23 S.E. 413; Peo. v. Garbutt, 17 Mich. 9.

W. B. Dickson, State's Attorney (Cochrane & Corliss, of counsel) for respondent.

The witness Clarence Mears did not show himself qualified to give a non-expert opinion. He had a speaking acquaintance with defendant, only; didn't see anything particular or out of the ordinary in his appearance on January 3rd, except that he was rubbing his hands and walking up and down with his head down. Rog. Exp. Test. 8; First Nat. Bank v Wirebach, 106 Pa. 37; Peo. v. Levy, 12 P. 791; State v. Crisp, 29 S.W. 172; O'Connor v. Madison, 57 N.W. 107; State v. Gaddis, 42 Ia. 268; Shaver v. McCarthy, 5 A. 614. To warrant an opinion as to sanity or insanity by a non-expert witness, some knowledge of the acts and conduct of the person whose sanity is questioned must appear. The facts stated should show a rational ground for an opinion, and show that the witness is qualified to give it. State v. Brooks, 4 Wash. 328; Prentiss v. Bates, 17 L. R. A. 494; Yanke v. State, 51 Wis. 464; Woodcock v. Johnson, 36 Minn. 217; Foster v. Dickerson, 64 Vt. 233. The determination of the competency of this witness to give an opinion was within the discretionary power of the court. I Clevenger Med. Jur. 576; Peo. v. Levy, 12 P. 794; Peo. v. Pico, 62 Cal. 53; Colle v. State, 75 Ind. 513; Denning v. Butcher, 59 N.W. 569; Boorman v. Ass'n., 62 N.W. 934. It was not error to receive the opinion of John L. Robertson, the sheriff who made the arrest. Bolling v. State, 16 S.W. 661; Peo. v. Borgetto, 58 N.W. 328. The omission of the words "without being conscious thereof," when the court read § 6814, Rev. Codes, to the jury, was clearly an inadvertence. His attention not having been called to it by an exception made at the time, and no request made upon the court to re-read the section or correct his omission, the error was waived. Peo. v. Kernagham, 14 P. 568; Benton v. State, 30 Ark. 335; Carroll v. State, 45 Ark. 548; West v. Ty., 36 P. 207; Peo. v. Olson, 22 P. 125; Peo. v. Barney, 47 P. 41; State v. Smith, 31 A. 206; State v. Potter, 15 Kan. 311; 8 Enc. Pl. & Pr. 266, 288; 11 Enc. Pl. & Pr. 217; Paulson v. Peo., 63 N.E. 144; State v. Montgomery, 9 N.D. 409; Peo. v. Hamm, 44 Cal. 100; Mason v. Peo., 2 Colo. 373; Lewis v. State, 16 S.E. 986; Barnett v. State, 100 Ind. 177; § 8176, Rev. Codes. Defendant's request for an instruction that if he was not conscious of the act which resulted in Mallem's death, he was entitled to an acquittal, having been presented to the judge too late, as shown by the bill of exceptions, was the same as if not presented at all. U. S. v. Gilbert, 25 Fed. Cas. 1287; Grubb v. State, 20 N.E. 257; Benson v. State, 21 N.E. 1109; State v. Rowe, 4 S.E. 506. And this feature of the law was fully and fairly covered by the court's general charge, hence no...