State v. Bert Kelsie

• Decision Date: 09 October 1919
• Citation: 108 A. 391,93 Vt. 450
• Parties: STATE v. BERT KELSIE
• Court: Vermont Supreme Court

108 A. 391

93 Vt. 450

STATE v. BERT KELSIE

Supreme Court of Vermont

October 9, 1919

May Term, 1919.

INDICTMENT for murder. Plea, not guilty. Trial by jury at the September Term, 1918, Orleans County, Wilson, J., presiding. Verdict, guilty of murder in the first degree. The respondent excepted. The opinion states the case.

Judgment that there is no error in the proceedings, and that the respondent takes nothing by his exceptions. Let sentence pass and execution be done.

Walter H. Cleary for the respondent.

Frank D. Thompson, State's Attorney, for the State.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

POWERS

This respondent has been convicted of murder of the first degree, and brings up for review the record of his trial. He presents but two questions, both of which relate to the admissibility of evidence.

1. It appeared that the respondent was, for a time, under the professional and expert observation of Dr. James C O'Neil at the Vermont State Hospital at Waterbury, having been sent there for that purpose by order of court. The respondent called Dr. O'Neil as a witness, and having qualified him as an expert in mental diseases, and having shown by him the examinations, observations, and tests to which the respondent was subjected, he drew from the witness the statement that as a result, the doctor reached the conclusion that the respondent, who was then nearly thirty-four years of age, had only the mentality of a child eight years old. The witness was then asked how, from a medical standpoint, an adult of that mentality is classed and replied, "As an imbecile." On motion by the State, this answer was stricken out, and the respondent took no exception. He was then asked, "From your observations and tests, Doctor, what would you say Mr. Kelsie is?" This question was objected to by the State, was excluded by the court, and the respondent excepted.

Assuming for the purposes of this discussion that it was sufficiently apparent that the witness would have answered that he regarded the respondent as an imbecile, the ruling was without error. Such an answer would have added nothing to the testimony of the doctor, as given. He was allowed to give, and did give, during his examination and cross-examination a very clear, comprehensive, and intelligent account of the various tests that were applied to the accused to determine his physical condition and his mental development, together with his responses and reactions, and from it all gave his conclusion that the accused was mentally and morally an eight year old boy. The purpose of this evidence is apparent. At common law an infant under the age of seven years was conclusively presumed to be incapable of committing a crime. Between seven and fourteen he was presumed to be incapable, but the fact might be shown otherwise. Above fourteen, he was presumed to be capable, but this presumption was rebuttable. 14 R. C. L. 264. So if common-law rules were to be applied, the respondent had by this evidence, if believed, raised a presumption of his incapacity, and made a jury question of it. If the witness had added that he regarded Kelsie an imbecile, the statement would have afforded the jury no additional aid in estimating the man's mentality. For the term "imbecile" has no...