State v. Quigley

• Decision Date: 29 April 1938
• Citation: 199 A. 269
• Parties: STATE v. QUIGLEY.
• Court: Maine Supreme Court

199 A. 269

STATE

v. QUIGLEY.

Supreme Judicial Court of Maine.

April 29, 1938.

Exceptions from Superior Court, Kennebec County.

Charles A. Quigley was convicted of assault with attempt to kill and slay, and he brings exceptions.

Exceptions overruled. Judgment for the State.

Argued before DUNN, C. J., and STURGIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

Francis H. Bate, Co. Atty., of Winthrop, for the State. Henry Cleaves Sullivan, of Portland, for respondent.

BARNES, Justice.

This case comes up on exceptions.

The respondent, then forty-five years of age, living with his wife in the city of Augusta, was tried and convicted of assault upon his wife with intent to kill and slay, he then being armed with a dangerous weapon, a shotgun.

It is not denied that in the early evening of August 18, 1937, respondent shot his wife, as she ran from their bedroom, several shots from the gun penetrating her lower back and one leg. One earlier shot, discharged while both had hands on the gun, went through a wall partition, and a third was fired through a window of the apartment. The apartment was in the second story of the house.

Summoned by telephone, two of the city police arrived at the home at 7:30 or 7:35, saw Mrs. Quigley in the lower hall, bleeding from her wounds.

They telephoned for gas bombs, and after two more officers arrived, respondent called to them, "Come up, I haven't any gun," and they went upstairs to the bedroom, arrested the respondent, clothed him, and conveyed him to police headquarters.

Mrs. Quigley was taken to a hospital and discharged after nine days.

At the trial the defense advanced was that through voluntary use of drugs respondent had gotten himself into such a state of mind that when he shot his wife he could not form or entertain an intent to kill and slay, as alleged in the indictment.

The assault is proved. A loaded gun is a dangerous weapon, when used within striking distance from the victim. State v. Godfrey, 17 Or. 300, 20 P. 625, 11 Am.St.Rep. 830; Case note to Crow v. Texas, 21 L.R.A.N.S., 497. Where, as here, the intent forms the gist of the offense, it must be specifically proved. State v. Neal, 37 Me. 468.

"In the commission of every crime there must be a union or joint operation of act and intention or criminal negligence. * * * The intent or purpose exists only in the mind of the accused, and, like malice, or any feeling, emotion, or mental status, is manifested by external circumstances capable of proof." People v. Connors et al., 253 Ill. 266, 97 N.E. 643, 648, 39 L.R.A., N.S., 143, Ann.Cas.1913A, 196.

"The general presumption is that every man is normal and is possessed of ordinary faculties; such defenses as intoxication, insanity, and aphasia (or a mind not conscious of its acts) are affirmative defenses, and the burden is on the defendant to establish them." Commonwealth v. Morrison, 266 Pa. 223, 109 A. 878, 880; Territory v. Davis, 2 Ariz. 59, 10 P. 359; Clore v. State, 26 Tex.App. 624, 10 S.W. 242; Cleveland v. State, 86 Ala. 1, 5 So. 426; State v. Truitt, Del. Gen. Sess. 1905, 5 Pennewill 466, 62 A. 790; Wilson v. State, 60 N.J.L. 171, 37 A. 954, 38 A. 428; State v. Letter, 133 A. 46, 4 N.J.Misc. 395; Com. v. Iacobino, 1935, 319 Pa. 65, 178 A. 823; Booher v. State, 156 Ind. 435, 60 N.E. 156, 54 L.R.A. 391; People v. Lewis, 36 Cal. 531; United States v. King, C.C., 34 F. 302.

Considering now the testimony produced before the jury, it appears that respondent, on the date of the alleged criminal act, was afflicted with the disease known as "shingles," from which he had been suffering, and for which he was treated by a doctor, for some ten days.

When his wife came home from a store, which she operated, at about 7 in the evening, bringing to respondent a box of food, and called to him as she walked up the stairs, "Hello, dear," he came out of the study, entirely nude, made no answer, and she went into the bathroom. He was then in the bedroom, and as she passed in toward the dresser, respondent secured a gun from a closet and advanced toward his wife. She seized the barrel of the gun. One shot was fired, and she fled, respondent shooting her as she went through the doorway.

What then was his mental ability to form and act upon an intent to shoot his wife? The answer can only be gathered from his acts and sayings before and immediately after the shooting.

Intoxication from voluntary use of drugs is his defense.

"A simple plea of not guilty, puts in issue the allegations and only the allegations in the indictment, and as to them the prosecution has the affirmative. But if the accused would put in issue any other allegation, any question as to his capacity or responsibility, he must do it by an affirmative statement. If he puts in the plea of insanity [voluntary intoxication], he assumes the affirmative, he changes the issue. And it is immaterial whether it is in writing or merely verbal; in either case it just as effectually raises a new issue. It is true it may be resorted to in connection with the plea of not guilty, but it is not and cannot be a part of it.

"The plea of insanity [voluntary intoxication] is, and of necessity must be, a plea of confession and avoidance. It does not deny a single allegation in the indictment, but simply says, grant all these allegations to be true, that all these acts have been done, and still guilt does not follow, because the doer of them is not responsible therefor.

"It does not meet any question propounded by the indictment, but raises one outside of it.

"It is not a mere denial but a positive allegation. * * * When insanity [voluntary intoxication] is found, it does not show that the act was any less willful, or deliberate, or intentional even; but it does show an excuse, an irresponsibility for what would otherwise have been criminal.

"So here, as in other respects, the plea of insanity [voluntary intoxication] does not deny, but avoids; confesses this element as well as the others, but excuses. It would seem, then, that the question of insanity [voluntary intoxication] can never be raised, unless by the prisoner; and by him only in an affirmative allegation, such as carries with it the burden of proof." State v. Lawrence, 57 Me. 574, 583; State v. Kavanaugh, 4 Pennewill, Del., 131, 53 A. 335; State v. Bacon, 1920, 1 W. W. Harr. 176, 31 Del. 176, 112 A. 682.

The four officers who first saw the respondent, at his house, a few minutes after the shooting, each heard respondent invite them upstairs and his statement that he had no gun then; observed him as he was being dressed.

One testified that "his eyes looked kind of wild and that he was nervous"; another officer, that he was not feeble, but walked unassisted to the bathroom where he took a pill.

Officer Dudley found the shotgun in the closet, with four loaded shells in the magazine, one in the barrel.

Officer Dowling dressed the respondent, and testified that, speaking of his wife, he said: "God damn her, she wouldn't get me a doctor." He, with Officer Tardiff, took the respondent to the police station, in a car, and testified that while riding, respondent said he "was going to ship McKay" (his doctor); and that he further said, "That wife of his took all those pills away from him."

Pressed for the exact expression, the officer answered: "God damn her, she took those pills away too."

Deputy Chief Dickson, one of the four officers who first saw the respondent, after the shooting, testified that he returned to the police station, and that as he went into the room where Mr. Quigley was, the latter asked, "How's Jessie?" He said, "She is in the hospital," and that Quigley then said, "Oh, my God!"

Two officers returned at once to the Quigley apartment, and found it locked. It was opened for them, and searching they found an empty shotgun shell in a waste basket in the bathroom, and two empty shells in a waste basket in the living room, in each basket the shells were at the bottom and the baskets were about half filled with crumpled paper thrown therein.

The shells were 20 gauge, to fit the gun used, and when recovered by the officers "smelled of powder."

Dr. Curtis W. Dyer, a witness called by the defense, appears from the record to be the first person to see the prisoner at the station.

He came at the request of an officer at some time after 8 o'clock. A fair statement of what the jury heard Dr. Dyer testify is that he found the prisoner groaning, observed the effect of shingles; the pupils of his eyes half dilated, eyes staring and bulging, no redness or inflammation, indicating, with other symptoms, that he was not under the influence of an opium derivative, meaning morphine, codein, or any of the opium salts. His speech was slow, coherent, but he was inclined to ramble in his conversation and go into other subjects than those inquired of; answers were "slow but well answered. I concluded that he was obviously under the influence of some sedative, probably barbital, not a pain-relieving drug; a soothing drug."

The doctor remained with the prisoner for about three-quarters of an hour; asked him questions relative to his family life, leading to the shooting, and was told he "had repeatedly asked for medical attention that had been refused...