State v. Leehman

• Decision Date: 19 June 1891
• Citation: 49 N.W. 3,2 S.D. 171
• Parties: STATE OF SOUTH DAKOTA, Defendant in error, v. JOHN B. LEEHMAN, Plaintiff in error.
• Court: South Dakota Supreme Court

2 S.D. 171, 49 NW 3 (1891)

STATE OF SOUTH DAKOTA,

Defendant in error,

v.JOHN B. LEEHMAN,

Plaintiff in error.

Supreme Court of South Dakota

Writ of Error to Circuit Court, Custer County, SD

Hon. John W. Nowlin, Judge

Affirmed

Charles J. Buell, Chauncey L. Wood, Rapid City, SD

Attorneys for plaintiff in error.

Robert Dollard, Attorney General, Pierre, SD

Attorney for defendant in error.

Opinion filed June 19, 1891

KELLAM, P. J.

The plaintiff in error was indicted and tried in the circuit court in and for Custer county for the crime of murder, in shooting and killing one James H. Burnes on the 11th day of July, 1889. He pleaded not guilty, and interposed the defense of insanity. He was convicted, and by writ of error brings the record of the trial to this court for review. The errors assigned are based upon the rulings of the trial court in admitting and excluding evidence. The first five assignments are general, and allege error in admitting or rejecting any evidence of a designated character, without in any manner specifying in whose testimony, or in what part of the record, the alleged error occurs. Such an assignment, if recognized as sufficient, would impose upon this court the duty of carefully examining the entire record in a search for errors of the nature complained of, and this it was the evident design of the statute to provide against. The rule of the Code requiring the errors sought to be reviewed to be specifically pointed out, should be respected by both court and counsel. The issue in this case involves a human life, and as no question is raised by the state as to the sufficiency of the assignment, we feel constrained to relax the rule, so far as it is intended for the relief of the court, and examine the records fully.

The evidence for the state shows that the next day after the killing the defendant took flight, went to Fall River County, S. D.,—about 35 miles distant from the scene of the killing,—hired out as a farm hand, and worked for a period of three weeks. On being discharged he went to Ft. Robinson, Wyo. T.,—about ninety miles distant,—worked making hay for a short time; then went to Chadron, Neb.,—about 90 miles from the scene of the killing,—to attend a soldiers' reunion; returned again to Ft. Robinson, and then went to Rushville, Sheridan County, State of Nebraska, where he hired out on a farm, and was there captured about the 1st day of September, 1889, and returned to Custer County. Among other witnesses called by the state was Albert S. Lindsey, who, being first duly sworn, testified as follows: "I reside in Fall River county, South Dakota, and have lived there, on and off, for about five years on a ranch. I first met the defendant, John B. Leehman, in July, 1889. He came to my ranch, and wanted work. He told me his name was George Benjamin Lawrence. I hired him, and he worked for me three weeks and two days, or two weeks and two days, somewhere near that time." Cross-examination. The witness further testified: "I discharged him. He did not attend to his duties just as I thought he should, and I was a little uneasy about him being there, and I considered that I had better not keep him any longer. Question 6. What was the matter with him? Answer. I took him to be a man of insanity. (The answer is stricken out by the court, to which ruling defendant excepts.) Q. 7. That is the reason you dispensed with him? A. Yes, sir. Q. 8. State how he acted while he was there, his acts and conduct. A. His acts were insanity, I say. I took him the first night he arrived at my place to be insane, and I didn't want him there. (The testimony is ordered stricken out of the record by the court, to which ruling defendant excepts.) A. I think he asked me my opinion of the man's character. By the Court: In stating your testimony, state what the man did. We do not want your opinion. You may give acts, and facts and circumstances. That is what you are to relate. The jury will say what the effect of it was. A. I don't know what way I could answer. Q. 9. Was there anything peculiar about his actions? Anything of that kind you may relate, but not your opinion of what he did. By the Court: State what you saw. If you saw anything peculiar, state what you saw. A. He acted very peculiar, and would talk very queer. There are times when he would start a conversation, and jump right off onto another, and it didn't really amount to anything. You could not hardly tell by following his conversation what he was talking about. It would be first one thing and then another. Q. 1. By the Court: He was a little incoherent in conversation, and could not carry on a conversation intelligently? A. That is what I mean. Q. 2. Do you recall another circumstance that you think was peculiar? He wore his clothes like he did when he came there, did he? A. He didn't wear the clothes he did when he came there. Q. 3. He changed his clothes? A. He didn't have scarcely any clothes when he came there. Q. 4. He got other clothes, did he? A. Yes, sir. Q. 5. Was there anything peculiar in that? A. I don't know as there was. Q. 6. The peculiarity you noticed most was his conversation, was it? A. Yes, sir. Q. 7. And that seems about the only peculiarity you noticed? A. Yes, sir."

In his argument the counsel for the plaintiff in error, referring, we suppose, to the testimony of this witness, says the court erred in refusing to allow non-expert witnesses to express their opinion as to whether the defendant was sane or insane, after having related the facts upon which their opinion was based. If the question presented and the ruling of the court were as indicated by counsel's brief, it would probably be held to be error, for it seems to be now well settled in nearly all the states that a non-expert witness will be allowed to express his opinion as to the mental condition of a person after having stated the facts upon which such opinion is based. People v. Conroy, 97 N.Y. 62; State v. Pennyman, 68 Iowa, 216, 26 NW 82; Territory v. Hart, (Mont.) 17 Pac. Rep. 718; Webb v. State, 5 Tex. App. 608; Hardy v. Merrill, 56 NH 227; State v. Klinger, 46 Mo. 228. The witness Lindsay had testified that defendant had worked for him two or three weeks, commencing in July, 1889, which would be soon after the alleged homicide; that he discharged him; that he did not attend to his duties as witness thought he should; that he was a little uneasy about having him there, and considered that he had not better keep him any longer. He was then asked, "What was the matter with him?" and answered, "I took him to be a man of insanity." This answer was stricken out by the court, to which defendant excepted. The reason for allowing a non-expert witness to state the impression made upon him by certain facts and conduct is the impossibility of reproducing before the jury the facts and conduct as they were really enacted. If a witness could faithfully and exactly repeat to a jury just what he saw and heard, so that it would appear to them altogether as it did to him, there would be no reason for taking his opinion, for the jury would be as well prepared to draw conclusions as the witness; but where, as in questions of insanity, an opinion must be based upon peculiarities of conduct, of speech, of looks, and other exhibitions, many of which are quite indescribable, a witness is allowed to help out his inability to reproduce these causes to the jury, by stating what impression they made upon him, the jury finally judging of the intelligence and candor and value of the opinion by the matter by which and the manner in which it was testified; but in the case before us the witness had disclosed no fact bearing upon the mental condition of defendant. That in the judgment of witness defendant did not attend to his duties to his satisfaction does not of itself afford the slightest evidence of sanity or insanity. We are not told whether he failed to perform his duties totally or partially, or whether there was some suggestive peculiarity in the manner in which he discharged them. To accept his opinion predicated upon that meaningless fact would be equivalent to taking his abstract unsupported opinion as to defendant's insanity. We think there was no error in striking out the answer. The witness was them asked particularly to "state how he acted while he was there—his acts and conduct, "—and his answer was: "His acts were insanity, I say. I took him the first night he arrived at my place to be insane, and I didn't want him there." If this answer had been designedly artful it could not have more completely avoided an intelligent response to the call of the question for facts as to the conduct of defendant. "His acts were insanity." This was not a statement, nor an attempt at a statement of his acts or conduct, but the expression of the witness' opinion as to acts which he did not disclose. It was properly stricken out. This witness afterward testified that the defendant was incoherent in his conversation, and that he had scarcely any clothes when he came there. Whether or not these two facts being testified to would have justified the court in taking the witness' opinion as to defendant's insanity, we do not stop to consider, for his opinion was not thereafter asked for. So far as an opinion was expressed in his former answer, "I took him to be a man of insanity," it had been properly stricken out, because the witness had then given no evidence which would authorize him to express an opinion. His subsequently' giving such evidence, if he did, would not have the effect to restore to the record his expunged answer. We do not think defendant can complain of any ruling of the court in connection with the witness Lindsay.

J. G. Barnes, being called as a witness for the defendant, testified that he had known the defendant about five years; that defendant got angry upon very slight provocation, and when angry would deal in the wildest absurdities; that he made gestures with his hands, and spoke in a...