State v. Theodore Ossweiler

• Decision Date: 10 June 1922
• Docket Number: 23,516
• Citation: State v. Theodore Ossweiler, 207 P. 832, 111 Kan. 358 (Kan. 1922)
• Parties: THE STATE OF KANSAS, Appellee, v. THEODORE OSSWEILER, Appellant
• Court: Kansas Supreme Court

207 P. 832

111 Kan. 358

THE STATE OF KANSAS, Appellee, v. THEODORE OSSWEILER, Appellant

No. 23,516

Supreme Court of Kansas

June 10, 1922

Decided January, 1922.

Appeal from Sedgwick district court, division No. 3; JESSE D. WALL judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Mental Disability of Defendant to Make Proper Defense--Duty of Court to Investigate. Rule applied that, when it is brought to the attention of the court that a defendant, about to be proceeded against for crime, is incapable, because of mental disability, to make proper defense, the court should investigate the defendant's mental condition before going forward with the proceeding.

2. SAME--No Formal Application for Investigation Necessary--Law Makes Application. It is not material that the showing of present mental disability be in affidavits made in support of an application for continuance only, and it is not necessary that counsel, either for the state or for the defendant, make formal application for an investigation of the defendant's sanity. In effect, the law makes the application for the defendant, and it is the court's duty to find out, by one of the statutory methods, whether he is in fit mental condition to be tried.

3. SAME--Finding of Mental Defects of Defendant--Duty of Court. Should the court find the defendant to be suffering from mental defect other than feeble-mindedness, he should be committed to the hospital for dangerous insane, under the provisions of section 4 of chapter 299 of the Laws of 1911. Should he be suffering from feeble-mindedness, he should be remanded to the probate court, under the provisions of section 2 of chapter 299 of the Laws of 1919.

4. SAME -- Mental Defects of Defendant -- Evidence Sufficient to Challenge Attention of Court. Affidavits of responsible persons, filed in support of an application for continuance, considered, and held to contain expressions of opinion and statements of fact sufficient to challenge the attention of the court to the subject of the defendant's inability to comprehend his position and to make his defense.

S. B. Amidon, S. A. Buckland, H. W. Hart, and Glenn Porter, all of Wichita, for the appellant.

Richard J. Hopkins, attorney-general, James A. Conly, county attorney, I. N. Williams, and S. L. Foulston, deputy county attorneys, for the appellee.

OPINION

BURCH, J.:

The defendant, whose education had been for the priesthood, and who, from religious zeal, had taken the novitiate for the most austere monastic order, the Passionists, shot and killed Caroline Cunningham, the only girl he ever cared for, on the steps of St. Mary's Cathedral in Wichita, immediately after he had attended early mass on Sunday morning, August 1, 1920. He was convicted of murder in the second degree, and appeals.

As a child, the defendant lacked the play instinct, indispensable to normal development of the human mind. As a youth, he was slow in his studies, morose in disposition, did not participate in sports and games, and formed no youthful companionships. As a young man, he was morbid, subject to fits of depression, and unstable in purpose. He displayed great religious fervor, and studied to be a priest. He changed his mind, concluded he would become a lawyer, and went to law school for four weeks. Then for a year and a half he studied philosophy, preparatory to entering the priesthood. Within three months of the time he would have completed his course in philosophy, he decided he would become a monk, and sought refuge with the Passionists, in order to save his immortal soul. He was affiliated with the Passionists for less than two years, and when he left their retreat he was a nervous wreck. On successive mornings he would go a mile to church in inclement weather, scantily clad, so that he might contract pneumonia and die. He was easily excited to rage, and his father testified that only from a sense of humiliation did he refrain from placing his son in an asylum. Later the young man seemed to improve, and was employed in a bank in Wichita. Officers of the bank testified he was entrusted with no work involving initiative or discretion, could not grasp instructions, was forgetful, and displayed the mentality of a boy of twelve or fourteen, although he was twenty-six years old. He enlisted in the army, and in August, 1918, was sent to France, where he remained until June, 1919. He did not enlist from patriotic motives; he hoped he might be killed. In France, he was orderly for a Roman Catholic priest who was chaplain of his regiment. In an affidavit for continuance, it was stated the priest, if present at the trial, would testify that the defendant, although very religious, was not merely queer and melancholy, but was mentally deranged. In the fall of 1919, the defendant was placed in his father's bank in the little town of Schulte, near Wichita. His conduct at Schulte was strange, and witnesses for the state who knew him there testified he was of unsound mind. Before going into the army, the defendant became engaged to marry Caroline Cunningham, but soon after he returned from France she broke the engagement. Sometimes, in fits of passion, he displayed a tendency to do personal violence, and on one occasion, for a fancied grievance, he threatened his father with an axe. In May, 1920, he purchased a pistol, which he carried about with him continuously. In May and June he told different persons he was worried and troubled, and said he intended to kill Miss Cunningham. He said he might just as well be lying in the penitentiary as to be in the bank at Schulte. The latter part of June he wrote Miss Cunningham a letter in which he said:

"My love has turned to hate, and I hate you and I curse you and hope all the bad luck possible will fall upon you if you ever marry any one."

On July 12 he wrote her the following letter:

"My dear Caroline: It's a year since you broke my heart, and I feel the disappointment as keenly as ever. Life has been a vale of tears and sorrows for me. I would have put an end to my life long ago, but for the thought of an afterlife. Dear Caroline, I have been mean to you, and wished you every evil possible, but all the while I have loved you just the same. It was grief and sorrow that made me so cruel. But today I am writing you to ask your forgiveness. I take back the curse I pronounced on you, and the evils I wished you. Yes, Caroline, I'll try once more to forgive you, and ask your forgiveness. I hope and pray that God will bless you once more, and make you the happiest girl in this world. I ask you to pray that God may give me the grace to come back to the church and lead a good life again. I intend to go to confession next Saturday. Henceforth I'll try to bear my sorrows patiently and with resignation. You can marry Jimmie, if you like him, and I'll ask God's blessing upon your union. Oh how I would have liked to realize my fond hopes. There is but one thing I would like to ask you. It has been and still is a mystery to me, why you jilted me. Don't be afraid of hurting my feelings. My heart is broken already, and your telling me the truth will not make me unhappier. Let me hear from you soon. With love and good wishes, I am

Your heartbroken

TEDDY."

On Friday before Sunday, August 1, the defendant told his sister his nerves were giving out, and he would be obliged to leave the bank.

After he fired the fatal shot, the defendant uttered a prayer, and leaned against a pillar of the cathedral, trembling violently. The pistol was in his coat pocket, and he had fired through his coat. He offered no resistance when the pistol was taken from him and, in answer to horrified inquiries, said he did not know why he shot the girl. He was taken into custody without protest, and in the afternoon was questioned by the chief of police and the county attorney. He said he arrived in Wichita about seven in the morning, and went to 8 o'clock mass. After the service he stood on the steps of the cathedral, simply looking about for any one he might know. He was not waiting for Miss Cunningham. When he saw her coming up the steps of the cathedral to the 9:15 service, he wanted to talk to her, but shot without speaking. A portion of his statement to the officers follows:

"Q. What led up to this shooting? A. Why, there was various things led up to it.

"Q. Well, what were they? A. Well, I don't know--

"Q. . . . Don't you want to tell them? A. No, they are more or less personal matters.

"Q. You don't want to tell them? A. I am willing to confess that I shot her, and of course the law can take its course that way. Of course it is all over--it is personal matters that have led me to it.

"Q. . . . Personal matters between you and her? A. Well, then other things--different other things that--not only her, but different other things that came up in my life that--

. . . .

"Q. Didn't you realize what you were doing this morning when you shot her? A. Well, I didn't intend to do it--I didn't know--because I was going to talk to her--and just all at once I took a notion and done it so fast, I didn't--I went up to her with the intention--I went up to her with the intention--walked up to her with the intention of talking to her, and I just--

"Q. Instead of talking to her, you shot her--is that the idea? A. Yes.

. . . .

"Q. Well now, Theodore, you said something--that it was a personal matter between her and you--this trouble came up--you don't mean that there was anything wrong with her do you? A. No, not at all. . . . I thought she was an ideal girl all the time, but I didn't think very much of her breaking her promise without a reason, and I found out she gave it to me in bad faith. That is what grieved me so much to think that for...