Territory v. McNabb

• Decision Date: 08 December 1911
• Citation: 120 P. 907,16 N.M. 625,1911 -NMSC- 064
• Parties: TERRITORY v. McNABB.
• Court: New Mexico Supreme Court

120 P. 907

16 N.M. 625, 1911 -NMSC- 064

TERRITORY v. McNABB.

Supreme Court of New Mexico

December 8, 1911

Syllabus by the Court.

The burden of proving, beyond a reasonable doubt, the guilt of one on trial for crime, including the degree of sanity legally essential to the commission of the crime charged, is on the prosecution throughout the trial; but the presumption of sanity stands as a fact established for the prosecution unless there is sufficient evidence of insanity on one side or the other to create a reasonable doubt of sanity.

The power of a trial court over the order of introduction of evidence is not absolute, and does not include the right to reject admissible evidence, when offered on the ground that the defendant on trial had not himself testified and laid a foundation for the testimony rejected; it appearing that the same foundation would be laid by the witness then offered.

While the word "irrationality" is sometimes used as a synonym for "insanity," the admission of evidence of the irrationality of the defendant did not cure the rejection of evidence offered of his "insanity," under the circumstances stated in the opinion.

The opinion of a nonexpert witness, who has had wide opportunity for observation, is admissible on the question of the insanity of a defendant on trial for murder, although the witness may be unable to give in detail all the circumstances and appearances which led her to think there had been a change from sanity to insanity. The duty of the trial court to pass beforehand on the qualification of such a witness to testify is to be exercised with due regard to the rights of the defendant; and its decision may be reversed, when it is clear that through it the defendant was deprived of what was essential to a fair trial.

Appeal from District Court, Guadalupe County; before Justice Wright.

Edward McNabb was tried for the murder of Herbert Hargis, by shooting him with a gun. He was found guilty of murder in the first degree. A motion for a new trial was made and overruled. Judgment was rendered on the verdict, and the defendant was sentenced to death by hanging. From that judgment, the defendant appealed. Reversed.

O. A Larrazolo, C. E. McGinnis, and Thomas B. Catron, for appellant.

Frank W. Clancy, Atty. Gen., and Edward A. Mann, for the Territory.

ABBOTT J. (after stating the facts as above).

In view of our conclusion that there was reversible error in the trial, we disregard such assignments of error as do not appear to require specific discussion under the circumstances, and deal only with three, which are of general importance.

In the first it is claimed that the trial court imposed on the defendant the burden of proof, as to the defense of insanity through this instruction: "Upon this subject, you are instructed that the law presumes every man sane and responsible for his acts until the contrary is shown by the evidence; but, while this is true, still, if there is evidence in the case tending to rebut this presumption sufficient to raise a reasonable doubt in your mind as to the sanity or insanity of the defendant, as hereinafter explained, at the time of the commission of the acts charged in the indictment, then it will be your duty to acquit the defendant." We understand the law governing the case to be that at the beginning of the trial there existed the legal presumption that the defendant was sane at the time he killed Hargis and at the time of trial. That presumption stood in place of proof of the fact, and if no evidence on that point had been offered on either side the presumption would have been conclusive. There could have been no "reasonable doubt" of the defendant's sanity on the part of the jury, because there was the conclusive presumption on the one side, and no evidence on the other. The evidence introduced by the prosecution may, contrary to its intended effect, indicate to the jury the insanity of the one on trial. But it is correct to say that the evidence as a whole must raise in the minds of the jury a reasonable doubt, since there is no other way for such doubt to arise. Without evidence, as we have said, the presumption of sanity stands. "The presumption that all men are sane until the contrary appears performs its mission when it relieves the prosecution of the necessity of proving the prisoner's sanity in the first instance, but if, in the progress of the trial, proof is adduced by either side tending to show the insanity of the accused it devolves upon the prosecution to prove the sanity of the prisoner beyond a reasonable doubt." State v. Pressler, 16 Wyo. 214, 92 P. 806, 15 Ann. Cas. 96, citing People v. Casey, 231 Ill. 261, 83 N.E. 278; Duthey v. State, 131 Wis. 178, 111 N.W. 222, 10 L. R. A. (N. S.) 1032; United States v. Chisholm (C. C.) 153 F. 808.

We think the instruction sufficiently guarded in the respect in question, since, in connection with it, the court gave this instruction: "And if you believe from the evidence, or if you have a reasonable doubt from the evidence, that at the time of the commission of the act charged in the indictment the mind of the defendant was so far affected with insanity as to render him incapable of distinguishing between right and wrong in respect to the killing, then you are instructed that the defendant will not be legally responsible for his act, and you will in that case acquit him." It is well settled that the instructions must be construed together. Territory v. Garcia, 12 N.M. 87, 75 P. 34; United States v. Densmore, 12 N.M. 99, 75 P. 31; Miera v. Territory, 13 N.M. 192, 81 P. 586; Territory v. Caldwell, 14 N.M. 535, 98 P. 167.

The next question we consider arose from the attempt on the part of the defendant to introduce by his first witness on the defense of insanity evidence of facts bearing on the relation of Hargis with the defendant's wife, which facts counsel for the defendant stated he purposed to show by the witness were communicated by him to the defendant a few days before he shot Hargis. Objection was made, on the ground that the facts, if proved, were immaterial, which counsel for the defense conceded them to be, in themselves, but claimed the right to show that they were communicated to the defendant as facts, and his mind was accordingly affected. The further objection was made that no foundation had been laid for the introduction of the evidence for the last-named purpose. Counsel for the defendant agreed that the order of proof was subject to the discretion of the court, but said he purposed to show by the evidence communication to the defendant. The court ruled: "This matter is not material at the present stage of the proof. If you desire to withdraw this witness and later on--" Counsel for the defendant then said, "That simply means that I will have to put the defendant on the stand first," to which the court replied, "I think so." Defendant's counsel then said he was not prepared to have defendant take the stand, and "if that was to be the rule of procedure" he asked for a continuance until the next morning, "to consult with the defendant," which request was granted. When the trial was resumed, the defendant was not offered as a witness at first, but instead his wife was made a witness, and was asked if, a short time before Mr. Hargis was killed, she had a conversation with her husband in relation to him, to which question objection was made that it was "incompetent, irrelevant, and immaterial, no proper foundation having been laid," and the objection was sustained. Defendant's counsel then made proffer as follows: "By this witness the defendant offers to prove that previous to the death of Mr. Hargis, and within a period of about 20 days before the homicide, the defendant had a talk and conversation with her, in which he remonstrated with her for the attention that she had been paying up to that time to the deceased, Hargis, and for receiving his visits at the defendant's home during the defendant's absence. That he stated to her that he knew about this matter and these visits, and knew, also, that he had taken her to parties, and, as before stated, that he objected to those things, and stated to her that she should desist from any further relations with the deceased. The defendant further offers to prove from this witness that from that time on there existed in the home of the defendant, and between the defendant and the witness, who is his wife, great unhappiness and infelicity." To this objection was made, and the offer was denied. Objections to the introduction of similar testimony by other witnesses were sustained. This, we think, was error.

While it is true that the order of proof is largely subject to the discretion of the trial court, it cannot be exercised in a way to deprive a defendant of material rights. The defendant in this case had the right to refrain from testifying. The court, in effect, made the condition that he must testify before such evidence offered on his behalf by other witnesses would be admitted. The testimony of others that they had talked with him about his wife's relations with Hargis was equally competent with his own testimony to the same effect, and might well be thought more reliable than his own testimony, since he was testifying under jeopardy of conviction and the consequent death penalty. It is said in the brief for the territory that, as this evidence was excluded on a question of the order of proof, it might have been again offered after the defendant had testified to the same effect, in corroboration of his evidence, and, as that was not done, the defendant has no ground of complaint. But, if it was improperly excluded in the first place, the defendant was not bound to repeat his proffer. His counsel may have thought that the time for...