Wilcoxin v. Commonwealth

• Decision Date: 17 June 1910
• Citation: 138 Ky. 846,129 S.W. 309
• Parties: WILCOXIN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

129 S.W. 309

138 Ky. 846

WILCOXIN v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 17, 1910

Appeal from Circuit Court, Barren County.

"To be officially reported."

Morrison Wilcoxin was convicted of murder, and he appeals. Reversed.

Allen Sandidge and Porter & Sandidge, for appellant.

James Breathitt, Atty. Gen., Tom B. McGregor, Asst. Atty. Gen Duff & Hutcherson, and Baird, Richardson & Summers, for the Commonwealth.

CARROLL J.

When put upon his trial for the murder of John Montgomery, the only defense made by the appellant, Wilcoxin, was at the time he committed the deed he was insane, and the only errors that we need notice upon this appeal are the ones relating to the instructions upon this subject given and refused by the court.

The instruction complained of reads as follows: "Although you may believe from the evidence to the exclusion of a reasonable doubt that the defendant Morrison Wilcoxin shot and killed J. W. Montgomery, yet if you are satisfied from the evidence that at the time he shot said Montgomery the defendant was suffering from mental disease or from natural feebleness of mind, and that because of said mental disease or natural feebleness of mind he did not know right from wrong, or if he did know right from wrong that said defendant by reason of mental disease or natural feebleness of mind had not sufficient will power to control his actions, you should find him not guilty on the ground of insanity; but, if you find him not guilty on the ground of insanity, you should state in your verdict the ground of acquittal." In addition to this instruction, the only instructions that the court gave were the ones usually given upon the subject of murder manslaughter, and reasonable doubt. The objection to the instructions is confined to the use of the word "satisfied." If the court should have used the word "believe" in place of the word "satisfied," we are of the opinion that the instruction was so prejudicial as to constrain us to grant a new trial. The precise question now under consideration has been considered so frequently by this court that it would be unprofitable to restate the reasons so often urged for and against the use of the word "satisfied" in an insanity instruction. But, for the purpose of definitely settling the law, we will briefly review the cases in which this question was presented.

In Graham v. Commonwealth, 16 B. Mon. 587, the court approved the use of the word "satisfied" in an insanity instruction, but other instructions were given that modified in some degree at least the meaning of this word. In Scott v. Commonwealth, 4 Metc. 227, 83 Am. Dec. 461 the jury was authorized to acquit if they "believed" from the evidence that the accused was of unsound mind. In Smith v. Commonwealth, 1 Duv. 224, and Kriel v. Commonwealth, 5 Bush, 362, it was in effect held that, as sanity is always presumed, the jury should be "satisfied" of the insanity of the accused by "a preponderance of the evidence" before they could acquit him. In Brown v. Commonwealth, 14 Bush, 398, the trial court used the word "satisfied" in the instruction presenting the defendant's plea of insanity, and counsel for the accused insisted that the use of this word was prejudicial "because it required the jury to disregard the plea of insanity, unless the evidence was such as to free their minds from doubt as to whether it was of such a character as under the instructions would authorize an acquittal; that they were told by that expression that the existence of a reasonable doubt as to the sanity or insanity of the appellant would not justify an acquittal upon the ground of insanity. That instruction standing alone is probably subject to that objection, but, when taken in connection with the other instructions, it does not appear that the jury could have been misled by it." In Ball v. Commonwealth, 81 Ky. 662, we find this: "The instruction of the court below placed the burden of establishing insanity, by preponderance of evidence, upon appellant, while it is contended that sanity, being an essential element in the crime charged, should be established by the commonwealth, to the exclusion of reasonable doubt, as any other fact necessary to make out the crime. If we were in any doubt as to the correctness of the court's ruling, we would nevertheless approve it on the authority of the decisions and long practice in this state. In the case of Graham v. Commonwealth, 16 B. Mon. 587, the law was announced as in the instruction by the court below, and that case has been followed by Smith v. Commonwealth, 1 Duv. 224, by Brown v. Commonwealth, 14 Bush, 401, and many others. But we have no doubt that the ruling is correct on principle." In Cotrell v. Commonwealth, 17 S.W. 149, 13 Ky. Law. Rep. 305, the court said: "The jury were told, in substance, that the law presumes every one to be sane; but if they were 'satisfied' by a preponderance of the evidence that when the accused did the killing, if he did do it, he was not of sound mind, they should acquit him. It is said that the word 'believe' should have been used instead of 'satisfied'; that the latter is too strong a word, was misleading, and that the jury were thereby virtually told that the existence of a reasonable doubt in their minds as to the sanity of the accused would not authorize an acquittal. It was, however, qualified, we think, by their being told that they were to be satisfied or governed by 'a preponderance' of the evidence in arriving at a conclusion as to his sanity." In Smith v. Commonwealth, 17 S.W. 868, 13 Ky. Law Rep. 612, the instruction read: "The presumption of law is that he was sane, and this presumption is to remain and continue unless the contrary is shown by the evidence to the satisfaction of the jury, and, before the accused can be acquitted on the ground of insanity, the jury should believe, from the evidence, that ***." In discussing the objection made to the use of the word "satisfaction" in this instruction,...