State v. Keerl

• Decision Date: 01 February 1904
• Citation: 75 P. 362,29 Mont. 508
• Parties: STATE v. KEERL.
• Court: Montana Supreme Court

75 P. 362

29 Mont. 508

STATE v. KEERL.

Supreme Court of Montana

February 1, 1904

Commissioners' Opinion. Appeal from District Court, Lewis and Clarke County Henry C. Smith, Judge.

James S. Keerl was convicted of murder in the second degree, and appeals. Reversed.

Holloway J., dissenting in part.

C. B Nolan and T. J. Walsh, for appellant.

Jas Donovan, for the State.

CALLAWAY C.

The defendant has appealed from a judgment finding him guilty of murder in the second degree, and from an order denying his motion for a new trial. A number of errors are assigned.

1. He first attacks the information, which, omitting the formal parts, is as follows: "That at the County of Lewis and Clarke, in the State of Montana, on or about the 11th day of April, A. D. 1902, and before the filing of this information, the said James S. Keerl did, wilfully, unlawfully, feloniously and of his deliberately premeditated malice aforethought, make an assault upon one Thomas Crystal, a human being and a certain pistol, commonly called a revolver, which was then and there loaded with gunpowder and leaden bullets, and by him, the said James S. Keerl, had and held in his right hand, he the said James S. Keerl, did then and there wilfully, unlawfully, feloniously and of his deliberately premeditated malice aforethought shoot off and discharge at, upon and into the body of said Thomas Crystal, thereby and by thus striking the said Thomas Crystal with the said leaden bullets, inflicted upon the said Thomas Crystal certain mortal wounds in the back, side and head of the said Thomas Crystal (a more particular description of which said mortal wounds is to the County Attorney unknown), of which said mortal wounds the said Thomas Crystal did then and there languish, and languishing did live, and thereafter, on the 21st day of April, A. D. 1902, at the County of Lewis and Clarke, in the State of Montana, the said Thomas Crystal died." The objections lodged against the information are: First. It does not contain an express averment of intent to kill. Second, It fails to allege that death resulted from the wounds inflicted.

The first objection must be overruled on the authority of State v. Metcalf, 17 Mont. 417, 43 P. 182, State v. Northrup, 13 Mont. 522, 35 P. 228, and Territory v. Godas, 8 Mont. 347, 21 P. 26. While the pleading in this respect must be held sufficient under the cases cited, this court has hitherto suggested that, as following a better practice, prosecuting officers should aver intent specially. Territory v. Godas, supra.

The second point urged presents more difficulty. After alleging the infliction of certain mortal wounds, the information continues, "of which said mortal wounds the said Thomas Crystal did then and there languish and languishing did live, and thereafter, on the 21st day of April, A. D. 1902, at the County of Lewis and Clarke, in the State of Montana, the said Thomas Crystal died." An information must be direct and certain as regards the party charged, the offense charged, and the particular circumstances of the offense charged, when they are necessary to constitute a complete offense. Pen. Code, § 1834. It is not permissible to convict the defendant upon mere inferences; he must be directly, plainly, and specifically charged with the commission of a certain crime, and it must be proved substantially as alleged in order to convict him. In order to convict an accused of murder, the fact of the killing by him as alleged must be proved beyond a reasonable doubt. Pen. Code, § 358. The fact that the defendant inflicted upon another human being a mortal wound deliberately, premeditatedly, with malice aforethought, and with the intent to kill the victim, is not sufficient to substantiate a charge of murder. The victim must die of the mortal wound, and within a year and a day after the stroke is received or the cause of death administered. Pen. Code, § 357. If the victim die of the mortal wound, but after a year and a day have elapsed since its infliction, the defendant may not be convicted of either murder or manslaughter. Neither can he be so convicted if, while the victim is languishing because of the mortal wound, death ensue from some cause not connected with or a consequence of the wound. For these reasons the information should directly allege that death resulted from the mortal wounds inflicted by the defendant. This view being so clearly correct in principle, it would seem that no citation of authorities is necessary, but see Clark on Criminal Procedure, 178; People v. Lloyd, 9 Cal. 55; Commonwealth v. Macloon, 101 Mass. 1, 100 Am. Dec. 89; State v. Sundheimer, 93 Mo. 311, 6 S.W. 52; Maxwell's Criminal Procedure, 180; Bishop's New Criminal Procedure, §§ 527, 531, 532; Wharton's Criminal Law (10th Ed.) § 536. In Lutz v. Commonwealth, 29 Pa. 441, while an indictment containing language similar to the one at bar was sustained, the court say: "This indictment is not artistically expressed. Its grammatical construction is open to criticism, and it trenches hard on those rules of certainty which obtain in criminal pleading." The Attorney General relies on the concluding clause of the information as supplying the defect, because it alleges, "and so the said James S. Keerl did in the manner and form aforesaid wilfully, unlawfully, feloniously and of his deliberately premeditated malice aforethought kill and murder the said Thomas Crystal." These words "are the mere conclusions drawn from the preceding averments. If the averments are bad, the conclusion will not aid them; if they are good, and sufficiently describe the crime as the law requires, *** the formal concluding words are immaterial." Territory v. Young, 5 Mont. 244, 5 P. 248; State v. Northrup, 13 Mont. 522, 35 P. 228. We cannot give our approval to this information. As this case must go back for a new trial, the information may be amended by leave of the court to conform to the views herein expressed.

2. The defense interposed was that the defendant, when he committed the homicide, was affected with insanity. The defendant excepts to instructions Nos. 48, 50, 51, 52, 56, and 57, and alleges that 48, 51, and 52 are in conflict with 34, 38, 49, 53, 54, and 55. A discussion of a portion of those excepted to will be sufficient to dispose of the points raised. We quote 52, 56, and 57.

(52) "The standard of accountability is this: Had the defendant, at the time of the commission of the act, sufficient mental capacity to appreciate the character and quality of the act? Did he know and understand that it was a violation of the rights of another, and in itself wrong? Did he know that it was prohibited by the laws of this state, and that its commission would entail punishment and penalties upon himself? If he had the capacity thus to appreciate the character and comprehend the possible or probable consequences of his act, he is responsible to the law for the act thus committed, and is to be judged accordingly."

(56) "The court further instructs you that, if you find that the accused was possessed of a delusion or delusions, you are carefully to bear in mind that it is not every delusion that can be considered an insane delusion. The delusion must be of such a character that, if things were as the person possessed of such delusion imagined them to be, they would justify the act springing from the delusion."

(57) "The court further instructs you that if you find the accused was possessed of a partial delusion only, and was not in other respects insane, then he must be considered in the same situation, as to responsibility, as if the facts with respect to which the delusion exists were real. For example, if, under the influence of his delusion, he supposed another man to be in the act of attempting to take away his life, and he killed that man, as he supposed, in self-defense, he would be exempt from punishment; but if his delusion was that the deceased had done a serious injury to his character or person, and he killed him in revenge for such supposed injury, he would be liable to punishment."

These instructions bring us to a realm in which the investigator feels himself lost in a labyrinth of conflicting decisions. Of course, any discussion of the principles applicable to insanity as a defense to crime must necessarily be limited to the particular case in hand. As to what extent juries should be instructed upon this subject and the subject matter of such instructions is of the greatest importance. Some general rules have always been, and must be, laid down by the courts for the guidance of juries in trials of this character. This view is universally adopted; the only question is, what rule or rules should be adopted, and should the courts lay down any test? The tests of insanity generally adopted by the courts are the right and wrong test, the irresistible impulse test, the right and wrong test as regards the particular act, and the right and wrong test as modified by the irresistible impulse test. The Supreme Court of New Hampshire denies the existence of any test. State v. Pike, 49 N.H. 399, 6 Am. Rep. 533; State v. Jones, 50 N.H. 369, 9 Am. Rep. 242. A majority of the courts seem to follow the right and wrong test laid down in McNaghten's Case. 10 Clark & Finelly, 200; 1 C. & K. 47 Eng. C. L. Rep. 129; 8 Eng. Rep. Full Print, 718. For this reason, and because instructions 52, 56, and 57 are based upon the doctrines enunciated in that celebrated case, we are justified in discussing it at some length. We shall do so with special reference to instructions 56 and 57. In 1843 Daniel McNaghten was tried for the murder of Edward Drummond. At his trial medical testimony was adduced showing that McNaghten was of unsound mind at the time of the killing; that he suffered from morbid...