Upstone v. People of State

• Decision Date: 20 November 1883
• Citation: 109 Ill. 169,1883 WL 10380
• Parties: WALTER UPSTONEv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

109 Ill. 169

1883 WL 10380 (Ill.)

WALTER UPSTONE

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

Filed at Ottawa Nov. 20, 1883.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Winnebago county; the Hon. WILLIAM BROWN, Judge, presiding.

Mr. A. J. HOPKINS, Mr. N. J. ALDRICH, and Mr. JOHN L. PRATT, for the plaintiff in error:

The felonious intent is essential to a conviction. Commonwealth v. McKie, 1 Gray, 62; Wharton on Homicide, secs. 670, 687; Rev. Stat. chap. 38, sec. 140; Ray's Medical Jurisprudence of Insanity, sec. 514; Ogletree v. State, 28 Ala. 693; Mooney v. State, 33 Id. 420.

While drunkenness does not excuse or palliate any offence, it may produce such a state of mind as to render the party incapable of forming or having any criminal intent. Mooney v. State, 33 Ala. 420; Wharton on Crim. Law, (4th ed.) secs. 32, 41, 43; Pigman v. State, 14 Ohio, 555; State v. Garvey, 11 Minn. 154.

The quo animus, or state of mind under which the offence was committed, is always a legitimate subject of inquiry. Bishop on Crim. Law, sec. 227; 2 Id. sec. 616; Pond v. People, 8 Mich. 150; Burrill on Crim. Evidence, 282; Maher v. People, 11 Mich. 215.

A reasonable doubt of the sanity of the accused must acquit. Hopps v. People, 31 Ill. 392.

Non-professional witnesses will not be permitted to give mere opinions, disconnected from the facts on which they are based. 1 Wharton & Stille, sec. 272; Real v. People, 42 N. Y. 270; Wharton on Crim. Law, (8th ed.) sec. 417.

As to the effect of intoxication in disabling the mind from a purpose, and having an influence on free volition, see Galliher v. Commonwealth, 2 Duv. 164; Swan v. State, 4 Humph. 136; Smith v. Commonwealth, 1 Duv. 225; State v. Schingen, 20 Wis. 74; Mooney v. State, 33 Ala. 420; Haile v. State, 11 Humph. 154.

Mr. JAMES MCCARTNEY, Attorney General, Mr. CHARLES A. WORKS, State's Attorney, Mr. CHARLES E. FULLER, and Messrs. CARNES & DENTON, for the People:

Where, without intoxication, the law would impute to the act a criminal intent, as in the case of wanton killing, without provocation, drunkenness is not available to disprove such intent. Rafferty v. People, 66 Ill. 124.

Wrongful intent to drink coalesces with the wrongful act while drunk. 1 Bishop on Crim. Law, secs. 397, 400, 401; 1 Wharton on Crim. Law, secs. 49-55; United States v. McGhee, 1 Curtis, 1; Flannigan v. People, 86 N. Y. 554.

The testimony of persons not experts, as to insanity, is proper. Rutherford v. Morris et al. 77 Ill. 397.

The instructions complained of were correct. The People were not bound in their instructions to anticipate and exclude defences. Mitchell v. Milholland, 106 Ill. 175; Logg v. People, 92 Id. 598.

Mr. CHIEF JUSTICE SHELDON delivered the opinion of the Court:

The grand jury of De Kalb county found an indictment against Walter Upstone for the murder of one Peter Melson. A change of venue was taken by the defendant to Winnebago county, and a trial had in the circuit court of that county, at its January term, 1883, resulting in a verdict of guilty, and fixing the punishment at imprisonment in the penitentiary for seventeen years. A motion for a new trial was made and overruled, and sentence was passed upon the defendant in accordance with the verdict. It is insisted that the evidence was insufficient to sustain the verdict.

The homicide occurred under these circumstances: It took place on Sunday, February 5, 1882, in the blacksmith shop of the defendant, situated on the main street and at the most public place in the village of Fielding, in DeKalb county. About two o'clock in the afternoon of that day one of the witnesses, George Clark, passing along the street on horseback, saw the defendant standing in his blacksmith shop door swinging a hammer and singing, and as the witness approached near, the defendant said to him: “George, look here.” The defendant then went inside the shop, and witness saw him strike somebody on the floor twice with a scoop shovel, and afterwards twice with a sledge-hammer. He then told witness to go and tell some one there was a dead man there. The witness went and gave information of what he had seen, and on his return a crowd had collected, and Peter Melson was found lying on the floor badly bruised, and his skull fractured. The killing was undisputed. The theory of the defence was, that the defendant was insane; that of the prosecution, that he was intoxicated.

It was in evidence, that the defendant and the deceased were intimate friends; that on the day before (Saturday) they went to Monroe, five miles distant, to a pigeon-shoot; that about one o'clock on the Sunday of the homicide, a witness saw the defendant in his yard, and he called to the witness to come over, who did so, and went into defendant's house; defendant mixed up a drink for them both to take, which was alcohol, as witness thought; witness remarked that his was too warm; defendant replied, perhaps it was not strong enough for him, and put in some more liquor, and then it was too strong; witness could not drink it at all; defendant drank his. Defendant said, “Dutch Pete is in the shop taking a little nap,” and he would take witness' glass out and let him drink it; he took it out, and witness went with him to the shop; Melson was there asleep, as the witness judged, his head and shoulders leaning against the shop, and partially sitting on the vice-bench; defendant set the glass on the bench and went up and talked to Melson, pulled him a little, and Melson partially fell, and settled down on the floor among a lot of rubbish, “so drunk he couldn't stand.” Witness did not hear him say a word; saw no bruises on him then; witness helped him up and put him on the clean floor, and defendant doubled up his cloth apron and put it under Melson's head; witness then left them; the glass was left sitting there. About three-quarters of an hour after, the alarm was given that defendant had murdered somebody. Defendant had been seen on that day standing in the doorway of his shop drinking something out of a tumbler, and then stepping back in the shop. An empty quart bottle was found in the stove, which had contained what the witness thought was alcohol. On Thursday or Friday before, defendant, together with two others, had purchased a gallon of alcohol, one paying for a half gallon, and defendant and the other for one-half, which they divided between them.

There was in evidence a conversation had with defendant some two or more years before, when he said that if he let liquor alone he was all right, and that when he drank liquor it made him “crazy wild.” The concurrent testimony of the many witnesses present on the occasion of the homicide was, that the defendant was intoxicated. The manifestations of conduct on the part of the defendant at the time were of a very strange, wild and irrational character. Very much evidence was given as to insanity in members of the family; that his mother, a sister and three brothers were insane, the mother, sister and one brother dying in insane hospitals; that an aunt of the mother was insane, and two of her sisters died in insane hospitals. Much testimony of neighbors and acquaintances was given,--on one side, that defendant was insane, on the other side, that he was sane. The superintendent of the insane asylum at Elgin, a medical man, gave it as his opinion, as an expert, that from the testimony, taking it to be true, defendant was insane. This was before the rebutting testimony of the prosecution. The question in the case was, whether there was but a temporary insanity, produced immediately by intoxication, or fixed insanity. If it was the former, it furnishes no excuse. Questions of this kind are peculiarly questions for a jury to determine, and upon settled principle this court should not interfere to disturb the verdict, unless it is clearly contrary to the evidence. We can not say that is so in this case.

Various rulings of the court were excepted to, as, that evidence was received in rebuttal improperly; that opinions as to defendant's sanity were admitted, and evidence of defendant's previous habits of intoxication. The time of receiving evidence is much in a court's discretion, and it would not be ground for reversing a judgment that evidence was permitted to be introduced in rebuttal which in strictness was not properly so receivable. Evidence was given, on both sides, of opinions of defendant's neighbors and acquaintances as to his sanity, founded upon their own knowledge. Exception is taken to such testimony admitted on the part of the People. We are of opinion that witnesses who are not experts may give their opinions, founded upon observation, on the question of sanity. Wharton on Crim. Evidence, sec. 417; 2 Ired. 78, Clary v. Clary; Wharton & Stille's Med. Jur. sec. 272; dissenting opinion of DOE, J., in State v. Pike, 49 N. H. 408, where the authorities are extensively collated; Hardy v. Merrill, 56 N. H. 227; Roe v. Taylor, 45 Ill. 485; Rutherford v. Morris, 77 Ill. 397; Carpenter v. Calvert, 83 Id. 63. Evidence of previous intoxication on the part of defendant was properly enough admitted, as bearing upon the question of intoxication at the time of the homicide, and of the conduct of defendant when in that state.

The second instruction given to the jury, for the People, was:

“That if the killing of the person mentioned in the indictment has been satisfactorily shown by the evidence, beyond all reasonable doubt, to have been the act of the defendant, then the law...