State v. Cook

• Decision Date: 14 November 1911
• Citation: 72 S.E. 1025,69 W.Va. 717
• Parties: STATE v. COOK.
• Court: West Virginia Supreme Court

72 S.E. 1025

69 W.Va. 717

STATE v. COOK.

Supreme Court of Appeals of West Virginia.

November 14, 1911

Submitted June 9, 1911.

Syllabus by the Court.

On a trial for murder, is the bad general reputation of deceased as a man of unchaste and lecherous habits toward women admissible, upon the issue whether the accused believed the information received from his wife and acted thereon? Discussed but not decided.

Section 20, chapter 152, Code 1906, providing that, "In a criminal prosecution other than for perjury evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination," does not preclude the state, on cross-examination of the prisoner, for the purpose of impeachment, from showing by him that he testified differently on a former trial of the same indictment.

Where insanity is interposed as a defense to an indictment for murder, the fact of such insanity must, from all the evidence, be proved to the satisfaction of the jury, and the burden is not cast upon the state to prove the prisoner sane beyond a reasonable doubt, immediately that some evidence however slight, is offered by the accused, tending to rebut the presumption of sanity. The jury before acquitting the prisoner, should be satisfied, from all the evidence in the case, that the prisoner was in fact insane, at the time of the homicide. A reasonable preponderance of the evidence in favor of the insanity of the prisoner ought to acquit him.

An instruction propounding the rules respecting circumstantial evidence, as laid down in State v. Flanagan, 26 W.Va. 122, was rightly rejected by the court below, as being inapplicable to any evidence in the case.

An instruction propounding the "right and wrong test," where the defense is insanity, and the rules respecting the defense of "irresistible impulse" was not wholly inapplicable to the evidence, and the court below did not err in giving the same to the jury, at the instance of the state.

In propounding hypothetical questions to expert witnesses counsel may without error, assume facts fairly inferable from the evidence, in accordance with their theory of them.

A case in which the alleged misconduct and separation of the jury was not shown to have been prejudicial to the defendant, justifying a new trial.

(Additional Syllabus by Editorial Staff.)

Mere frenzy, or ungovernable passion, however furious, is not "insanity," within the meaning of the criminal law.

Error to Circuit Court, Wyoming County.

Hayes Cook was convicted of voluntary manslaughter, and brings error. Affirmed.

W. R. Thompson, John M. McGrath, and Sanders & Crockett, for plaintiff in error.

Wm. G. Conley, Atty. Gen., for the State.

MILLER J.

On an indictment for the murder of Alonzo M. Stewart, the defense was temporary or emotional insanity. The verdict of the jury was, guilty of voluntary manslaughter, acquitting the defendant of murder, as charged in the indictment; and the judgment of the court was that defendant be imprisoned in the penitentiary for the period of three years.

In this court the prisoner relies on numerous assignments of error. Some of the errors assigned in his petition for the writ have apparently been abandoned. We will consider those only which have been argued. We think they are the only points calling for decision.

First, it is claimed the court erred, to the prejudice of the prisoner, (a) in excluding proposed evidence of the general reputation of the deceased, in the county and community in which he lived prior to his death, for lasciviousness, and for making indecent and lascivious proposals to married and unmarried women; and, (b) proposed evidence of numerous witnesses of specific acts of adultery by deceased. On the trial, the theory of the defense was, that the prisoner, on the night of the homicide, on hearing from his wife, her confessions of adultery with deceased, and her account of the manner in which, by his alleged indecent and lascivious proposals, deceased had finally accomplished his purposes with her, became so enraged, and so mentally unhorsed, that he immediately arose from his bed, saddled his horse, and started for the home of deceased in Pineville, some fourteen miles distant, where on arriving about three o'clock in the morning, he called him out of his house, charged him with breaking up his home, and shot him dead. Much evidence, including that of the prisoner and his wife, was admitted, showing how and when she made her alleged confession to him, and her story told him of the conduct of the deceased towards her, and its alleged effect upon the prisoner's mental condition, evidenced by his anger, his conduct in leaving his bed, and his preparations to go after deceased; but it is claimed, nevertheless, that if the proposed evidence of the reputation of deceased for lasciviousness, and of the specific acts of adultery had been admitted, as it is earnestly insisted it should have been, the prisoner would undoubtedly have been wholly acquitted of any crime, wherefore he was greatly prejudiced. It is insisted, particularly with reference to the alleged reputation of deceased for lascivious conduct, that it must be assumed that such reputation was known to the prisoner, and that if the evidence had been admitted it would have strengthened his belief in the story told him by his wife, and which intensified his already inflamed passion and resentment against the deceased; and besides would have corroborated the evidence of both before the jury, that deceased was in fact guilty of the conduct with the wife, as she had confessed.

That evidence of such reputation and conduct of the deceased is admissible, in cases of homicide, upon the issue whether the accused believed the information received from his wife, and acted thereon, the prisoner relies mainly on Jones v. State, 38 Tex. Cr. R. 87, 40 S.W. 807, 41 S.W. 638, 70 Am.St.Rep. 719, Orange v. State, 47 Tex. Cr. R. 337, 83 S.W. 385, and 1 Wigmore on Ev. § 63, citing and quoting from Williams v. Fambro, 30 Ga. 233, 235. In Jones v. State, Jones was convicted of murder in the second degree. In that case the court remarked, that if the jury believed the testimony of Jones and wife, the theory of the defendant that his offense was nothing greater than manslaughter was clearly presented, and if they did not believe this testimony, then manslaughter, so far as the jury was concerned, was not in the case. So we see, that if reputation evidence of this character is admissible, how important it may have been in that case, in aid of the prisoner's defense, in reducing the offense from murder to manslaughter. The Texas Court, in that case, was of opinion that the evidence of specific acts of adultery was rightly rejected by the trial court, that such evidence would involve too many issues, and that the court could not turn aside to try a vast number of such collateral matters; but was of opinion that evidence of the deceased's bad reputation, in the particular mentioned, was admissible for the purpose of determining whether the prisoner believed the story told him by his wife, and to add to the probability that he acted on this belief. According to the Texas cases, the only possible effect of such evidence would have been to reduce the crime from murder to manslaughter, not to wholly acquit the prisoner. In the case at bar, we must conclude the jury believed the prisoner's story, and that of his wife, for the verdict was manslaughter; so that the result of the trial, so far as the prisoner's guilt or innocence was concerned, was the same as if this character evidence had been admitted. Moreover, the prisoner proved by his own evidence confessions by the deceased to him long before the homicide, of his lascivious character, of his ravishings of the wives and daughters of brother Odd Fellows and Masons, so that, if the prisoner is to be believed, he needed no proof of the lascivious character of deceased, and of the probability of his guilt, as confessed by the wife on the night of the homicide; wherefore he could not have been prejudiced before the jury on his trial. We need not decide, therefore, and do not decide, whether this class of character evidence is ever admissible in cases of homicide. The rule of the Texas Court did not receive the sanction of the Supreme Court of Kansas. State v. Murray, 83 Kan. 148, 110 P. 103. In that case as in this case, the prisoner had been permitted to testify as to information received from the deceased and others, as to the licentious character of the deceased, and the court observes: "The testimony he was allowed to give accounted fully for the state of his mind, the only matter at issue."

Another point is that the court below, in contravention of section 20, chapter 152, Code 1906, permitted the state, on cross-examination of the prisoner, to interrogate him, for the purpose of impeachment, as to what he had testified on a former trial. State v. May, 62 W.Va. 129, 57 S.E 366, is relied on. The statute is: "In a criminal prosecution other than for perjury, evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination." Clearly this statute does not apply to a cross-examination of the prisoner, when offered as witness in his own behalf on a subsequent trial. State v. May is inapplicable therefore. The very language of the statute seems to preclude the construction put upon it by prisoner's counsel. The Attorney General argues that our statute applies only to the "statement," which a prisoner was allowed to make, prior to the statute of 1881, which removed his disability to testify in his own behalf. He cites State v. Woodrow, 58 W.Va. 527, 536, 52 S.E. 545, 2 L.R.A. (N. S.) 862, 112 Am.St.Rep....