STATE v. MAIER.

• Decision Date: 05 January 1892
• Citation: 36 W.Va. 757
• Parties: STATE v. MAIER.
• Court: West Virginia Supreme Court

36 W.Va. 757

STATE

v.MAIER.

Supreme Court of Appeals of West Virginia.

Submitted Sept, 15, 1892. Decided Oct. 1, 1892.

1. Continuance Criminal Proceedings.

Section 1, c. 159, Code 1891, prescribes that "when an indictment is found in the Circuit Court of any county against a person for a felony, the accused, if in custody or if he appear in the discharge of his recognizance or voluntarily, shall, unless good cause be shown for a continuance, be tried at the same term."

2. Continuance Reversal Criminal Proceedings.

To justify a reversal by the appellate court upon the ground of refusing a continuance, such action of the inferior court must appear to be plainly erroneous.

3. Insanity Evidence Expert Criminal Proceedings.

On questions of insanity a witness who is not an expert is allowed to express his opinion, where he has personal knowledge of the facts on which his opinion is based.

4. Insanity Evidence Expert Criminal Proceedings.

On the direct examination the questions put to the expert must be framed hypothetically, unless there is no conflict of evidence as to the facts, or unless the expert is personally acquainted with them.

5. Insanity Evidence Expert Criminal Proceedings.

Where witnesses are examined by the State in rebuttal on the question of insanity, who have had transactions with the prisoner and have known him well for months and years immediately preceding the killing, it is not error to permit the State to ask such witnesses, whether or not they had. ever observed anything about the prisoner, or in what he said or did, that indicated insanity.

6. Insanity Murder Instructions Criminal Proceedings.

The indictment following the form prescribed by the statute charged among other things, that the prisonor had "willfully and deliberately murdered the deceased, M. Maier." On the motion of the State the court gave the following instruction to the jury: "The court instructs the jury hat, if they believe William Maier murdered Marie Maier, as charged in the indictment, and had at the time sufficient power of mind to distinguish between the right and wrong of such act, although they may believe he suffered from mental aberration as to other mat-ters, the verdict ought to be 'Guilty.' Such instruction was not erroneous. 7. New Trial.

A new trial, asked on the ground that the verdict is contrary to the evidence, ought to be granted only in the case of plain deviation from right and justice.

Statement of the case by Holt, Judge:

On the 23rd day of April, 1892, in the Circuit Court of Ohio county, the prisoner, William Maier, was tried for the murder of his wife, Marie Maier, found guilty of murder in the first degree, and sentenced to he hanged. Various exceptions were taken by the prisoner to rulings of the court upon which he has obtained this writ of error. The learned judge, before whom the case was tried, on overruling the prisoner's motion for a new trial, filed a written opinion, in which he sets out, review's, and discusses all the points of exception to his rulings except the instructions given on behalf of the State. The following is his opinion:

"1. It is claimed that the court erred in overruling the prisoner's motion for a continuance. This motion was based (a) on the prisoner's own affidavit, which states, in substance, that when a boy about nine years of age he received a violent blow upon his head, caused by a brick falling from the second story of a house, which rendered him totally unconscious for a long period of time, and from the effects of which he has never fully recovered; that at times the effects of said blow make him utterly incapable of doing a rational act, especially when laboring under excitement; that his father is crazy at times, and his grandfather, on his father's side, was considered unsound, and reputed to be mentally unbalanced: that the only witnesses by whom he could prove these facts were his father, John Maier, his mother, Kate Maier, Dr. Ocker, arid others, all who live in Aalen, Wurtemburg, Germany; and that, if given until the next term of court, he could produce the testimony of said witnesses; and (b) on the affidavits of Lis counsel, to the effect that they had received information (which the affidavit details) which rendered it proper that a further and complete investigation into the prisoner's sanity should be made; that sufficient time had not been given them to prepare a proper defence for the prisoner; and 'that the crime with which said Maier is charged has caused intense excitement and consternation in this community, which excitement has not yet subsided, and renders it very improbable, in the nature of things, that a jury would at this time venture to render any verdict in opposition to such a defined and unanimous sentiment againt the accused.

"Section 1 of chapter 159 of the Code provides: 'When an indictment is found in the Circuit Court of any county against a person for a felony, the accused, if in custody, * * shall, unless good cause be shown for a continuance, be tried at the same term. If any witness for the accused be a nonresident of the state, * * * the accused may present to the court in which the case is pending, or to the judge thereof in vacation, an affidavit showing such fact, and stating therein what he expects to prove by such witness, his name, residence, or place of service and employment, and, if such court or judge be of the opinion that the evidence of such witness, as stated in such affidavit, is necessary and material to the defence of the accused on his trial, an order may be made by such court or judge for the taking of the deposition of such witness.' etc. Hence the question arises, did the affidavits aforesaid show that the evidence of the prisoner's father, mother, and Dr. Ocker, or any of them, was necessary and material to his defence?

"And, first, as to the blow the prisoner received in his childhood. He says in his affidavit that at times the effects of this blow make him utterly incapable of doing a rational act, especially when laboring under excitement; and that his father, mother, Dr. Ocker, and others, all of whom live in Germany, are the only witnesses by whom he can prove that fact. But, as the prisoner has lived in this country, and not in Germany, during the past eight years (as was disclosed in one of the affidavits filed in support of the motion for a continuance) the proof of that fact would be wholly unnecessary and immaterial to his defence, unless followed up by additional evidence showing that he had been affected in the same way, at times, during the past eight years, which additional evidence, according to his own affidavit, he was unable to produce; while the facts detailed in the affidavit of his counsel, which they claimed indicated mental unsoundness at times, were based solely upon hearsay, being unsupported by the affidavit of any witness who could testify to the truth thereof.

"Second, As to the insanity of the prisoner's father and grandfather. In State v. Christmas, 6 Jones (N. C.) 471, it was held: 'Where hereditary insanity is offered as an excuse for crime, it must appear that the kind of insanity proposed to be proven as existing in the prisoner is no temporary insanity, but that it is notorious, and of the same species with which other members of the family have been afflicted.' And in Laros v. Com., 84 Pa. St. 200, it was held: 'A court is not bound to hear evidence of the insanity of a man's relatives * * * as grounds of a presumption of possible insanity, until some evidence has been given that the prisoner himself has shown signs of his own insanity.' Now, the prisoner in this ease did not claim in his affidavit that his insanity was hereditary, but that it was the result of a blow received upon the head in childhood. Clearly, then, it seems to me that evidence of hereditary insanity was not necessary or material to his defence.

"Third. As to the claim that sufficient time was not given counsel in which to prepare a proper defence for the prisoner. The affidavit shows that they had five days, excluding Sunday, for such preparation. There were no intricate questions of law involved in the case. The prisoner had but one defence, and that was insanity. No one regretted more than the court its inability to postpone the trial until a later day in the term; but, owing to the overcrowded condition of the docket, and the fact that the case of State v. Garrison had in February, 1892, been set for trial on the 25th day of April, 1892, and that the result of that trial and the length of time it would probably consume were involved in so much uncertainty, it did not seem possible to name a later day for this ease, with any assurance of a trial, than April 20th. That the time allowed counsel, however, for preparing for trial was reasonable and amply sufficient for the purpose is shown conclusively (1) by the able defence they made for the prisoner, and (2) by the fact that, although more than four weeks had elapsed betwen the conclusion of the trial and the argument of the motion for a new trial, not the sl'.ghtest intimation was given upon such argument, by affidavit or otherwise, of the discovery of any additional evidence, or of any fact that would upon a second trial have a tendency to produce a different verdict.

"2. It is claimed that it was error to overrule the prisoner's motion for a continuance because of the excited condition of the community. That the community was not excited to such an extent as to deprive the prisoner of a fair and impartial trial is shown by the fact that twenty qualified jurors were obtained out of a panel of thirty nine.

"3. It is claimed that the prisoner's counsel should have been permitted to ask the medical experts the following question: 'Are not love and jealousy causes of insanity V A sufficient answer to this claim is that the question was not put in the hypothetical form. McMechen v. McMechen, 17 W. Ya. 683; Bowen v. City of Huntington, 35 W. Ya....