Torske v. State
| Citation | 242 N.W. 408,123 Neb. 161 |
| Decision Date | 29 April 1932 |
| Docket Number | 28114 |
| Parties | MANGNUS TORSKE v. STATE OF NEBRASKA |
| Court | Supreme Court of Nebraska |
ERROR to the district court for Lincoln county: ISSAC J. NISLEY JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. Nonexpert witnesses who have an intimate personal acquaintance and an opportunity to observe the actions and demeanor of a person, before, at and after the time in question, may be permitted to testify as to his sanity or insanity when they have stated the primary facts which support their conclusion.
2. Value of nonexpert opinion on insanity depends upon the facts and circumstances detailed by such witness, the jury reaching its own conclusion from the facts found to be true, the narration of which is aided by the conclusion of the witness .
3. An accused relying upon insanity as a defense and having offered competent evidence to support it, the burden of proof is upon the state to establish his sanity.
4. The opinion of a medical expert may be based (1) on his acquaintance with the party whose condition is under investigation, (2) upon a medical examination of him which he has made, or (3) upon a hypothetical case stated to the expert in court. Omaha & R. V. R. Co. v. Brady, 39 Neb. 27, 57 N.W. 767.
5. Ordinarily, an expert witness testifying from observation or personal knowledge must testify to the facts upon which the opinion is based.
6. Physician may testify as an expert as to his opinion as to a person's sanity, basing his opinion solely upon an opportunity for observation and examination.
7. Where instructions are not inconsistent or contradictory but, considered together, correctly state the law, the judgment will not be reversed because one does not state the entire law on the subject, unless it appear that the jury were misled.
8. Where the evidence is insufficient to support a finding of a lesser degree than that charged in the information, it is not error to refuse to give an instruction defining the lesser offense.
9. If an instruction be given which is incorrect as an abstract statement of law, relating to a lesser offense than that charged in the information and which is not supported by any evidence in the record and upon which defendant is acquitted, it is not prejudicial to the defendant and does not constitute reversible error.
10. Ordinarily, error cannot be predicated on an instruction given at the request of the complaining party. Bell v. State, 114 Neb. 17, 205 N.W. 559.
11. No form of insanity is recognized in this state as a defense to a criminal act unless it affects the mind of the accused to such an extent that it renders him incapable of distinguishing between right and wrong with reference to the act committed.
12. A judgment of conviction will not be reversed for the giving of an erroneous instruction which does not prejudicially affect the rights of the defendant.
Error to District Court, Lincoln County; Nisley, Judge.
Mangus Torske was convicted of murder in the second degree, and he brings error.
Affirmed.
Carrico & Carrico, for plaintiff in error.
C. A. Sorensen, Attorney General, and Clifford L. Rein, contra.
Heard before GOSS, C. J., DEAN, GOOD, DAY and PAINE, JJ., and LANDIS and RAPER, District Judges.
Torske was convicted of murder in the second degree and sentenced to 17 years in the penitentiary, from which he prosecutes error proceedings to this court. The plaintiff in error is charged in the information with killing Lewis C. Paulsen, an attorney at law of Hastings, at or near North Platte. The only question of fact litigated was whether or not Torske was sane when he fired the fatal shot. The record is otherwise without dispute that he purposely and maliciously killed Paulsen. The complaint of the plaintiff in error is directed (1) to the admission of the testimony of experts as to sanity, and (2) to certain instructions of the court to the jury.
The tragedy, which resulted in the death of Paulsen, occurred February 27, 1931, upon the farm occupied by Torske near North Platte, Nebraska. The defendant, a tenant farmer, was living upon this place with his family, where he had moved five years before from Minden, Nebraska. While living near Minden, he commenced a series of business transactions with one Kennedy, which continued for a long period of time, and the result of which was that he was continuously and increasingly indebted to Kennedy. During the entire time Torske lived at North Platte, Kennedy and Paulsen, his attorney, were frequent visitors at his home for the purpose of collecting or renewing notes and mortgages to evidence the indebtedness. Among the items included in these transactions were notes for several hundred dollars given to Paulsen and assigned to Kennedy. Defendant claimed certain credits to which he was entitled and which had not been given to him. These items had been in dispute since 1927, up to the time of Paulsen's death. Each time a new note was given, additional security was demanded and a controversy arose, which terminated in a quarrel of some bitterness between defendant and Paulsen.
This continued from time to time until January 29, 1931, when Kennedy and Paulsen called at defendant's home, at which time an argument ensued about the indebtedness and the credits claimed by the defendant. A demand was made for the mortgaged property. There was again the usual argument between defendant and Paulsen, and finally Paulsen was ordered to leave. Kennedy then had a talk with defendant, and it was agreed that defendant and his son were to come into town that afternoon and fix up the matter. This was done by the son giving a mortgage upon some of his property as collateral security for the defendant's debt. Thereafter, on February 25, Paulsen called the defendant by long distance telephone and demanded possession of the mortgaged property. This was refused by the defendant, who contended that the due date on his indebtedness had been extended. The next day the defendant went to Minden and had a conference with Kennedy. Two days thereafter Kennedy and Paulsen called at defendant's home and demanded that he turn over some horses as a payment upon his debt. Again an argument took place between Paulsen and defendant which resulted in the defendant ordering Paulsen off the place, with which order he complied. After some suave conversation, in which Kennedy told defendant that he ought to adjust the matter, because if he did not Paulsen would start a replevin action and take all his live stock and machinery covered by the mortgage, they got into Kennedy's car and overtook Paulsen walking back to town and brought him back, when defendant agreed to turn over certain horses after dinner. At the appointed time Kennedy returned bringing Paulsen with him. The defendant had requested Kennedy not to bring Paulsen back.
The controversy and quarrel was renewed, but an agreement was reached whereby the defendant was to deliver 16 head of horses at North Platte for an agreed price of $ 50 a head which was to be credited on the debt. There was an argument that two more horses should be included. The defendant demanded credit upon the notes before he moved the horses. Paulsen refused to indorse the credit until the horses were delivered. The argument broke out again about the disputed credits, during which time the defendant went to the barn to turn out some calves. While doing this he saw a shotgun left in the barn by one of his sons, which he picked up and with it shot Paulsen. The foregoing statement of facts is established by the record without dispute.
The defendant interposed the defense of insanity. To support this he relied upon the testimony of his wife and three sons Arnold, Raymond and Viggo Torske. The son, Viggo Torske, testified that he heard the quarrel and walked to a place where he could see his father with the gun. He testified that his father was very excited, his eyes bulged out and glassy, was still quarreling with Paulsen when he fired the fatal shot. This son took the gun and then helped to pick up the body of Paulsen. He did not remember where his father went, but while engaged in getting Paulsen's body into the car saw his father coming from the house with another gun, and he yelled three or four times at the top of his voice, "Leave him lay there." "He was swinging the gun in all directions, eyes were bulged out and he was as white as a sheet, his eyes were glassy and I took one look and jumped out of the car and beat it." This witness then ran, as did his brother Raymond and Kennedy. The defendant brought Kennedy back and talked to him about the claimed credits and ordered Kennedy to write a memorandum relative to them. Kennedy complied with his request. Whereupon, he said he would kill himself, and ordered Kennedy and his two sons around the barn out of sight, when the defendant discharged the gun twice without effect. Then the officers drove upon the scene and quieted the defendant. Obviously, we cannot detail all the testimony in this opinion, but the foregoing is a substantial statement of the son Viggo Torske and is corroborated almost in its entirety by Raymond. After a delineation of these facts both Viggo and Raymond were asked whether at the time the shot was fired their father was sane or insane, and the answer of both was that he was insane. Mrs. Torske testified as to the defendant coming into the house after the second gun, immediately after Paulsen had been killed, and as to his appearance and actions, and that at that time in her judgment he was crazy. Kennedy, a witness for the state and the only eyewitness to the tragedy except Viggo Torske, denied that Paulsen had abused Torske, that his appearance was such as described by Viggo and Raymond...
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