State v. Hurst

• Citation: 4 Idaho 345,39 P. 554
• Parties: STATE v. HURST
• Decision Date: 21 February 1895
• Court: United States State Supreme Court of Idaho

39 P. 554

4 Idaho 345

STATE v. HURST

Supreme Court of Idaho

February 21, 1895

EVIDENCE-INSANITY-OPINION OF WITNESS, WHEN ADMISSIBLE.-Where the plea of insanity is interposed, it is sufficient for the state, in offering testimony in rebuttal of such plea, to show by witnesses upon its part, that they had an intimate acquaintance with the defendant for years and up to the time of the homicide to qualify such witnesses to testify as to their opinion, as to the insanity of defendant.

INSTRUCTIONS-EXCEPTIONS TO MUST BE TAKEN BEFORE VERDICT.-Where the record shows that all instructions given were given by the court, and does not show that any were given upon request or suggestion of either party, the presumption is that all of the instructions were given by the court upon its own motion and in such case, to entitle exceptions thereto to be heard, the record must show that such exceptions were taken before verdict.

ERROR NOT APPEARING IN RECORD.-Where no error appears in the record prejudicial to the defendant the judgment will be affirmed.

(Syllabus by the court.)

APPEAL from District Court, Oneida County.

Affirmed.

O. W Powers, D. C. McDougall, and C. F. Stone, for Appellant.

We do not contend that a nonexpert may not give testimony as to the sanity or insanity of a man, but we do insist, and all the authorities sustain our position, that the witness must so far as he can first detail all the facts and circumstances upon which the opinion is founded in order that the jury may judge of the value of the opinion. (Rogers on Expert Evidence, 8, 9, 157; Baubien v. Cicotte, 12 Mich 456; People v. Hopt, 9 P. 407, 4 Utah 247; Lester v. Pittsford, 7 Vt. 158, 181; Morse v Crawford, 17 Vt. 499, 502, 44 Am. Dec. 349; Pidcock v. Potter, 68 Pa. St. 342, 8 Am. Rep. 181.) The court erred in charging the jury that if the defendant shot the deceased, then, no matter what the provocation was, and no matter what the surrounding circumstances, unless the shooting is justifiable as explained, the defendant is guilty of murder, provided the jury further believed beyond a doubt that the defendant did the shooting with the premeditated design of killing deceased. This took the whole question of adequate provocation from the jury. A man, when overborne with intense passion, may shoot with a premeditated design to kill, and yet he is not guilty of murder. (Biggs v. State, 29 Ga. 723, 76 Am. Dec. 630; People v. Hurtade, 63 Cal. 288.) "The giving of instructions which are inconsistent with or contradictory with each other is error, for the reason that the jury will be as likely to follow one as the other, and it cannot be known which they followed. In such a case the judgment must be reversed." (2 Thompson on Trials, 2326, and cases cited; Illinois Cent. R. R. v. Moffitt, 67 Ill. 431.)

George M. Parsons, Attorney General, and Hawley & Puckett, for the State.

"One not an expert may give an opinion founded on observation that a certain person is sane or insane." (Lawson on Expert and Opinion Evidence, rule 64, subrule 4, p. 476.) "Mere opinion, as such, is inadmissible; but when it is shown that the witness has had an opportunity of observing the character then his judgment or belief, formed upon such observations, is evidence for the consideration of the jury." (Gaston, J., in Clary v. Clary, 2 Ired. 78, cited and approved in McRae v. Malloy, 93 N.C. 154, 160; Bladwin v. State, 12 Mo. side pp. 223-238; Reed v. State, 62 Miss. 405-408; Clark v. State, 12 Ohio 483, 40 Am. Dec. 481; Hardy v. Merrill, 56 N.H. 227, 22 Am. Rep. 441; Grant v. Thompson, 4 Conn. 203, 10 Am. Dec. 119; Baedurn v. State, 12 Mo. 223.) While the law presumes one accused of crime innocent until the contrary is proven beyond a reasonable doubt, we also contend that the law presumes him sane, and that the burden of proving insanity is upon the defendant, at least to the point of raising a doubt of his insanity; many courts go even further, and hold that the insanity must be established beyond a reasonable doubt, while others only require that the insanity shall be established by a preponderance of evidence. The question has been before this court and was exhaustively considered in the case of People v. Walter, 1 Idaho 386-391; Brown on Medical Jurisprudence and Insanity, sec. 520; People v. Pico, 62 Cal. 50; People v. Messersmith, 61 Cal. 246; Bond v. State, 23 Ohio St. 349; State v. Jeddis, 42 Iowa 264; State v. Jones, 64 Iowa 349, 17 N.W. 911, 20 N.W. 470; Plake v. State, 121 Ind. 433, 16 Am. St. Rep, 408, 23 N.E. 273; Wright v. People, 4 Neb. 407; State v. Redemeier, 71 Mo. 173, 36 Am. Rep. 462.

HUSTON, J. Morgan, C. J., and Sullivan, J. , concur.

OPINION

HUSTON, J.

The defendant was convicted of murder in the second degree. From that judgment this appeal is taken, as also from the order refusing a new trial. The defense of defendant was insanity. Errors are alleged as to the admission of certain evidence on the part of the state upon the question of insanity. The defense having introduced their testimony in support of such plea, the state, in rebuttal thereof, offered evidence which was admitted over the objection of defendant. To the ruling of the trial court in this behalf, exception was taken. Concisely stated, the contention of the defendant is that the court erred in the admission of the opinions of nonexpert witnesses, upon the part of the state, upon the question of the sanity of the defendant, without the proper or requisite predicate having been shown. Numerous witnesses were examined, on the part of the state, upon this issue; and as the questions propounded, and the answers given in response thereto, are substantially the same, they will all be considered under this objection.

It is contended by appellant that, while the weight of authority is in favor of the admissibility of the opinion of nonexpert witness upon the question of insanity, before such opinion can be given by such witnesses it is necessary that the competency of the witness to give it should be established by evidence of his acquaintance with the defendant, and with his character, habits and disposition. Conceding this to be the true construction of the rule, let us apply it to the present case. Several witnesses were introduced by defendant, who testified variously as to the pedigree, peculiarities, etc., of the defendant, all tending to the establishment of the theory of insanity. The state than introduced various witnesses, the consensus of whose evidence was to this effect: "Have known defendant for past sixteen or twenty years. Have seen him almost daily, Have done business with him frequently. Saw him just previous to, and immediately after, the homicide. From my knowledge of defendant, and from my acquaintance with him, I consider him sane." What more does the rule require, even under the construction contended for by the appellant? What more could be required? Suppose the prosecution should attempt to go into a detail of circumstances. What would the inquiry be properly and...