State v. Fenik

• Decision Date: 14 June 1923
• Docket Number: No. 5535.,5535.
• Citation: 121 A. 218
• Parties: STATE v. FENIK.
• Court: Rhode Island Supreme Court

121 A. 218

STATE

v. FENIK.

No. 5535.

Supreme Court of Rhode Island.

June 14, 1923.

Exceptions from Superior Court, Newport County; Arthur P. Sumner, Judge.

Lazar Fenik was convicted of first degree murder, and he brings exceptions. Certain exceptions sustained, others overruled, and case remitted for new trial.

Herbert L. Carpenter, Atty. Gen. (Charles P. Sisson, of Providence, of counsel), for the State.

Frank F. Nolan and Max Levy, both of Newport, for defendant.

STEARNS, J. The defendant was indicted for the murder of his infant daughter, Judith, in the city of Newport on March 31, 1920. He was found guilty of murder in the first degree. After denial of a motion for a new trial in the superior court, the case is in this court on defendant's bill of exceptions.

The defense was insanity. The facts in regard to the homicide are not in dispute, and are substantially as follows: Defendant at the time of the trial was 33 years of age. He was born in Russia and came to this country in 1914; he was a musician and in New York was employed in the chorus of an opera company. In 1917 he married an actress and subsequently with his wife moved from New York to Newport, where two children were born. In Newport he was employed as an insurance solicitor. The relations between defendant and his wife were at times strained and unhappy, due, as defendant claimed, largely to the desire of his wife to return to New York and resume her former work on the stage. Mrs. Fenik, called as a witness by the state, testified that her husband had the "artistic temperament," that he was erratic, excitable, moody, and at times despondent and very peculiar.

On the Saturday preceding the day of the homicide, which occurred on the Wednesday following, defendant went to Providence to attend a dinner given by his employer to certain of the company solicitors who had been exceptionally successful in the conduct of the company's business. He was elated with this distinction. On his return to Newport in the afternoon, he found his wife in his absence had sold most of the furniture in his house, the house was empty, and his wife and children were gone. Later he got possession of his children and made several attempts to place them in proper surroundings, in the expectation that he might induce his wife to return to him and again establish a home. His wife refused to return to him, the youngest child was placed in a hospital, and Judith, 2 1/2 years old, was placed in the home of defendant's sister. Defendant was devotedly attached to his children, and became much depressed by the situation. He was unable to eat or to sleep, he walked the streets, and, on Tuesday night, walked the floor of his tenement most of the night. He suffered from headache, his eyes were bloodshot, and his appearance was so changed and unusual as to attract the attention of his friends.

On Wednesday morning, the day of the tragedy, he passed several friends and acquaintances, and either refused or failed to recognize them. Shortly before noon, one of his friends, seeing him walking on the street with Judith, induced him to enter his automobile and then drove him with the child to defendant's home, where he left them. Within a few minutes, the tenant on the floor below heard defendant shouting and screaming; going to the hall door, this witness looked up to the hall on the floor above where she saw defendant standing with the child in his arms, both father and child being covered with blood. The police were summoned, and upon their entry into the house, father and child were found lying on a bed. Defendant had cut his own throat and the throat of his daughter with a razor. The captain of police testified the defendant at that time made certain statements to the effect that he intended to kill himself and his child, that his troubles were too much for him, and that he wished to end it all. Defendant testified that he had no recollection of the tragedy and knew nothing of the occurrence until later he was told about it. At the hospital defendant, although not under the influence of any anæsthetic sang songs from opera while the attending surgeon was sewing up his wounds. The surgeon stated that defendant at that time was abnormal. Two notes and fragments of other notes written by defendant were found in his room. One note was as follows: "Can't live and see the child suffering." Another, "Will take the with me to save he from the hardship of this selfish world." The child, Judith, died a few days later.

The sole contested issue at the trial was the sanity of defendant and his legal responsibility for the homicide.

Numerous objections during the progress of the trial were taken by defendant, some of which have been waived. The other objections which we consider require specific discussion, for convenience and brevity are grouped into classes and will be considered on the general questions raised thereby.

Defendant had testified that when he was living with his parents in Russia, his father was, as he expressed it, "inclined to melancholia." He was then asked if there was any insanity on his mother's side. This question was ruled out by the trial justice. The court later ruled that testimony of insanity of either father or mother would be allowed, but as to relatives beyond that it was too remote. Counsel for defense then stated that he desired to offer proof of insanity of defendant's grandfather. This was not allowed, and the offer was then made of proof of insanity in the family of defendant on both sides, and this also was ruled out, as was also an offer of proof of insanity of the sister of defendant's mother. The trial justice based his rulings in rejecting the abovementioned testimony, as he said, on the ground that it was too remote. The reason for this ruling is stated again in the charge to the jury, as follows:

"The prior insanity of the accused, if he ever was insane, his previous mental condition— not too remote in point of time—are always relevant."

The exclusion of this testimony was error. From the evidence already in the case at the time, it is apparent that there was some basis for the claim that defendant was suffering from mental disease or insanity, not merely of a temporary and transient nature, but which might be found to be hereditary. Proof of the possibility of such an inheritance from the parents would be strengthened by proof of insanity in one or both of the grandparents. Such evidence is admissible, both on principle and authority, and so far as we are informed such has been the accepted practice in this state. State v. Quigley, 26 R. I. 263, 58 Atl. 905, 67 L. R. A. 322, 3 Ann. Cas. 920, is not an authority to the contrary. In the Quigley Case the defendant claimed to be suffering from delirium tremens at the time of the homicide. This was a temporary condition, voluntarily produced by the defendant, and was not the result of inheritance. There was no claim that defendant had ever suffered from any inherited mental disease or that the alleged mental disease was anything more than a temporary disturbance. To exclude testimony of insanity in the direct lineal line of the accused's ancestors in the present case might result in depriving both the jury and medical witnesses of evidence of value, and might result in grave injustice to the accused. In regard to the admissibility of evidence of insanity in collateral kinsmen, a more difficult question is presented, and within reasonable limits much must be left to the reasonable discretion of the trial justice, in view of the circumstances of each particular case. In the case at bar, we think proof of insanity of defendant's aunt was improperly excluded. The exceptions on this point-are sustained.

The next ground of exception is to the charge of the court in regard to the definition of "murder," and to the refusal to give proper instructions in regard to the distinction between murder in the first and second degree. This part of the charge is as follows:

"Murder is defined in the statute as this: It is the unlawful killing of a human being with malice aforethought; and if you should find the defendant guilty of murder, the question then arises whether you would find him guilty of murder in the first or second degree. I will say that every kind of willful,...