State v. Hassing

• Decision Date: 17 October 1911
• Citation: 118 P. 195,60 Or. 81
• Parties: STATE v. HASSING.
• Court: Oregon Supreme Court

118 P. 195

60 Or. 81

STATE v. HASSING.

Supreme Court of Oregon

October 17, 1911

Appeal from Circuit Court, Multnomah County; J.P. Kavanaugh, Judge.

J.M.W Hassing was convicted of murder, and he appeals. Affirmed.

Defendant was convicted of the crime of murder in the first degree committed upon the person of Edith Hassing, his wife. The defense, so far as disclosed by this appeal, was insanity.

The defense offered in evidence a communication from the chief alienist of the public insane asylum, near Aarhus, Denmark which appears to be a reply to an official letter of inquiry from the Ministry of Foreign Affairs of Denmark. This communication states that it is disclosed from the records of the asylum, and from the journals of the Hassing family who had been placed there, supplemented with details from certain relatives of the Hassings, that certain relatives of defendant, both in the direct and collateral line, had been insane and confined in the asylum. The names and family history of these persons, compiled from the above sources are given in the communication. It has indorsed upon it the words: "Legalized. The Ministry of Foreign Affairs Copenhagen, January 27, 1911. For the Minister, H.A. Bornhoft," with the seal of state attached. Accompanying this document is a certificate of the Danish minister to the United States, which is as follows: "It is hereby certified that in Denmark registers of birth, marriage and death are kept by pastors of the Danish Lutheran Church, who are state officers; that transcripts of parish registers serve as certificates of birth, marriage and death; that the insane asylum near the city of Aarhus is a state institution, and that the chief alienist is keeper of asylum records. It is finally certified that legalization made by the Danish Ministry of Foreign Affairs cover the genuineness of the document legalized and prove that such document originates from the proper Danish authority. Washington, D.C., March 8, 1911. C. Moltke, Minister of Denmark to the United States." And also a certificate of P.C. Knox, Secretary of State, as to the official character of the Danish minister. The state objected to the introduction of these documents, and they were excluded. This ruling is assigned as error.

To rebut certain evidence offered by defendant as to his insanity, the state called Fred Nicholson, who testified that he became acquainted with defendant about two weeks before the shooting; that he was with him about three times a week for two weeks, and talked with him on all kinds of subjects; that, at his suggestion, he came twice with him to the courthouse to listen to murder trials, where the defense was insanity; that in his judgment he was sane. The state also called J.C. Tally, jailer, who had been in charge of the prisoner for nearly four months. He testified that defendant did not act differently from other prisoners, and expressed the opinion that he was sane. The admission of this testimony is also assigned as error.

The court was requested by defendant's counsel to give the following instructions, both of which were refused: "You are instructed that before you can find the accused guilty you must find from the evidence, and beyond a reasonable doubt, that he had sufficient mental capacity to distinguish between right and wrong as applied to the act he was about to commit, if he did commit it, and sufficient capacity to be conscious that the said act was wrong, and at the same time sufficient will power and self-control to restrain himself from the commission of such act, and unless you so find beyond a reasonable doubt in this case you must find the defendant not guilty." "You are instructed that in order to convict a person of a crime he must have a memory and intelligence enough to know that the act he is about to commit is wrong, to remember and understand and to know, if he commits the acts, he will be subject to punishment, and reason and will sufficient to enable him to compare and choose between the supposed advantage and gratification so obtained by the criminal act, and the immunity from punishment which he will secure by refraining from it, and, having so contemplated the act, the will and controlling power to restrain himself from committing it, and unless you find that all these elements concurred in the commission of the act alleged by the defendant, if he did commit it, you must not find him not guilty." The refusal to give these instructions is assigned as error.

John A. Jeffrey (Chas. E. Lenon, on the brief), for appellant.

Jos. H. Page, Deputy Dist. Atty. (Geo. J. Cameron, Dist. Atty., and J.J. Fitzgerald, Deputy Dist. Atty., on the brief), for the State.

McBRIDE, J. (after stating the facts as above).

There was no error in the ruling of the court, rejecting the communication of the chief alienist of the insane asylum to the Danish Ministry of Foreign Affairs. Section 766, L. O.L., requires that foreign documents shall be proved "by the original or by a copy certified by the legal keeper thereof, together with a certificate under the great or principal seal of the country or sovereign thereof, that the document is a valid and subsisting document of such country, and that the copy is duly certified by the officer having the legal custody of such original." No such certificate appears upon the copy offered in evidence; nor does the communication purport to be a copy of any original document, but a summary of the history of certain members of the Hassing family, compiled partly from the records of the asylum, partly from journals of the family, and partly from oral statements of members of the family. It was clearly inadmissible.

The instructions requested were properly refused. They present the "irresistible impulse" doctrine at its very worst, and entirely ignore the difference between an impulse to kill, arising from mental disease or from "sudden and sufficient provocation," and one which springs from anger, or a wicked and furious desire for revenge. Whatever may be the rule in other jurisdictions, we are of the opinion that the test of insanity in this jurisdiction is the capacity to distinguish between right and wrong. Section 2408, L. O.L., is as follows: "A morbid propensity to commit prohibited acts, existing in the mind of a person, who is not shown to have been incapable of knowing the wrongfulness of such acts, forms no defense to a prosecution therefor." The intent of this statute is to establish a conclusive presumption that a person having sufficient mentality to know that an act is wrongful and unlawful is capable of governing his conduct by that knowledge, and of resisting any impulse to violate the law.

The only case in which our law recognizes any irresistible impulse to kill is in section 1897, L. O. L., which provides "If any person shall, without malice express or implied, and without deliberation, upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible, voluntarily kill another, such person shall be deemed guilty of manslaughter." This phase of the case was fully presented to the jury in the general charge, and in so presenting it the court was quite as favorable to the defendant as the evidence warranted, since in this case there was no sudden heat of passion and no provocation. Briefly, the evidence disclosed that defendant, for some time before the killing, had beaten and abused his wife, and, in one...