State v. Hansen

• Decision Date: 19 February 1894
• Citation: 35 P. 976,25 Or. 391
• Parties: STATE v. HANSEN.
• Court: Oregon Supreme Court

35 P. 976

25 Or. 391

STATE v. HANSEN.

Supreme Court of Oregon

February 19, 1894

Appeal from circuit court, Clatsop county; T.A. McBride, Judge.

John Hansen, convicted of murder in the first degree, appeals. Affirmed.

C.W. Fulton, for appellant.

Geo. E Chamberlain, Atty. Gen., W.N. Barrett, Dist. Atty., and F.D Winton, for the State.

MOORE J.

The defendant was indicted, tried, and convicted of the crime of murder in the first degree, by striking and killing his wife Caroline Hansen, in Clatsop county; and, a motion for a new trial having been overruled by the court, the defendant was sentenced to be hanged. From this judgment he appeals, and assigns as error the admission of certain evidence, and the giving and refusal of certain instructions. We shall consider the assignments in the order in which his counsel presents them:

1. He contends that the court erred in admitting in evidence the testimony of H.A. Smith, sheriff of said county. The defense interposed was insanity superinduced by the excessive use of alcoholic liquors, to support which evidence was introduced tending to show that for about 11 years prior to the alleged homicide the defendant had been in the habit of becoming intoxicated whenever he could obtain liquor; that, upon returning to his home after a drunken spree, he was restless and could not sleep, or work continuously at anything, but changed from one thing to another, and that these nervous symptoms continued for about 8 or 10 days after each of his periodical sprees; that when he had been drinking for some time he talked to himself, as if he imagined there was a little man in his boat to aid him in picking up his net; that at times, when under the influence of liquor, he laughed, danced, and cried alternately; that during these sprees, or while getting sober, he was moved to tears by the mention of his wife's name in his presence; that deceased was killed on Wednesday, July 26, 1893, and that for some time prior to the preceding Sunday the defendant had been in Astoria, had purchased while there two gallons of whisky, and was so much under its influence on that Sunday that he remained in his boat alone, without any apparent purpose, and talked to himself; that on the evening of that day his wife had him brought home, where he remained until Tuesday night, when he went out fishing on the Columbia river; that on the following morning he visited a neighboring fisherman, to whom he complained of being sick, and took three drinks of whisky, and partook of some bread and coffee, but, when offered beafsteak, he said he could not eat it; that after partaking of these refreshments he went home, and retired to rest; that about 5 o'clock that evening he informed a person working near his house that some one had killed his wife. Upon the defendant's symptoms, thus described, hypothetical questions were asked medical experts, whose answers thereto tended to show that, at the time of the alleged homicide, defendant was insane. To rebut this evidence, the state, over the objection of defendant's counsel, was permitted to show by the testimony of H.A. Smith, the said sheriff who took the defendant into his custody the day after the tragedy, that in his opinion the defendant was perfectly sane on the day he was arrested. The objection to this evidence was made upon the ground that it did not appear that the witness was an intimate acquaintance of the defendant. The bill of exceptions shows that the witness had known the defendant for five or six years; that he saw him every month or so, when he came to town; and that said witness made the following answers to questions propounded to him: "Q. Were you intimately acquainted with him? A. I was, for about two years. Not very intimately, but at the time I belonged to the Fishermen's Union. Q. He was in your office quite frequently during those two years? A. Yes, sir. Q. Were you up to his place visiting? A. Not until this time. Q. How frequently during these two years did you see him? A. I didn't pay any attention. It might be a month or so, or a couple of weeks. Q. Do you know him well? A. I know him pretty well." Upon these answers to the foregoing questions, the court permitted him to express an opinion upon the mental condition of the defendant. He also testified that he took the defendant to jail about 8 o'clock in the evening, and saw him about three times during the night after his arrest, and that he did not notice any tremor of his muscles. Section 706, Hill's Code, provides that evidence may be given on the trial of the following facts: "(10) *** The opinion of an intimate acquaintance respecting the mental sanity of a person, the reason for the opinion being given." It is not every acquaintance that is competent to give an opinion in such cases, but it must be one who has close social relations with the person whose mental condition is the subject of inquiry. There are, however, degrees of intimacy; and it is within the discretion of the trial court to say when the witness has shown himself competent and qualified to express an opinion upon the subject, and this discretion, when exercised, will not be reviewed, except in case of abuse. People v. Pico, 62 Cal. 52; People v. Levy, (Cal.) 12 P. 794; State v. Murray, 11 Or. 413, 5 P. 55. But even if reviewable, and found to have been exercised erroneously, the defendant could not have been injured by this evidence, for the reason that it was confined to the defendant's symptoms, and that the sheriff's opinion was predicated upon his mental condition on the day after the alleged homicide. The fact that he did not have the symptoms of a person suffering from an attack of delirium tremens, and was not then, in the opinion of the officer, insane, did not prove that at the time the act was committed he was not laboring under an insane delusion. The most that can be claimed for it is that it might strengthen the inference that if the defendant did not have those symptoms, and was not, in the opinion of the witness, insane, the day after the commission of the act, that therefore he was sane when it was committed. It is within the discretion of the trial court to admit evidence upon the question of the sanity of the person accused, at the time of committing an offense, and of his acts, conduct, and habits at a subsequent time, which would fairly justify any inference of insanity relating back to the time of the alleged offense. Com. v. Coe, 115 Mass. 481; Com. v. Pomeroy, 117 Mass. 143.

2. The state, upon the cross-examination of Victor Hansen defendant's son, showed by him that the first time he saw his father after he was placed in jail was on Saturday forenoon, and, over objection, was permitted to show that defendant's counsel was with him at the jail, and had a conversation with his father. The record shows that on Saturday morning, just before the defendant was visited by his counsel, he made the following confession: "On Wednesday, July 26th, last, I was duly sober all day. I left Burnside's scow about 6:30, and went home, and met my wife coming from Svenson's. When I got in the house, I laid down on the sofa. She said, 'If you don't go to work, I will kill you.' I said, 'I have been out fishing all night, and I now want to rest.' I then went up stairs, to bed. I slept then until the steamer Miler whistled. In the afternoon, about 3:15, I then got up, and went down stairs to urinate, and my wife was then sitting in front of the house. After I got through urinating, I went up stairs again, and laid down in the bed until about 3:45. I went down stairs again, and my wife told me to help her pick berries. I said, 'I have little time, but I will help you anyhow; but I want to give the chickens water first.' My wife was then in the raspberry patch, alongside of the chicken house, picking berries. I then helped her pick berries. While we were picking berries, she said, 'If you don't leave the place, I will kill you.' I said, 'I don't want to leave.' She then picked up a rock, and throwed it at me. I had a stick and an ax standing by the chicken house, with the intention of driving it out in the pasture to tie the calf on. The stick was about 3 feet long, with a knot close to the end. I struck her with that stick, and the knotty part hit her on the head. I was standing behind her, a little to the left, and she was stooping down a little, picking berries. She never said nothing after she fell in the place where she was found. I stayed there with her until she was dead. I then went back to the house, and stayed there about 2 minutes, and then went back again to where my wife laid, and looked at her, and then went away again. It was about 4:45. I then went to the tide land, and notified John Nylund, and told him the same as I testified to at the coroner's inquest. After I came back from the tide land, before Nylund got to the house, I chopped part of the stick I killed my wife with, and put it in the wood box, and that evening burned it up in the stove. John Hansen. Signed in the presence of H.A. Smith, F.I. Dunbar. Done on Saturday morning, July 29th, 1893." The following statement was made by the defendant, and added to the confession, but was not signed by him: "After she was dead, and lying where she was found, I took the keys out of my wife's right-hand pocket of her dress; and I went in the house, and opened the lower drawer of the bureau, to look for some papers, and found a bottle of Kümmel. There was about one good swallow in the bottle, and I drank that, and then took out the keys and put them in the upper drawer, but I never opened it. I was duly sober, and in good humor." The confession was introduced in evidence by the state, which also called Peter Svenson, who testified that defendant, while in...