Opinion
No. 33585.
May 1, 1939.
1. HOMICIDE.
In murder prosecution, exclusion of evidence that at times defendant would act stranger than he would at other times was not reversible error.
2. HOMICIDE.
In murder prosecution, exclusion of evidence that defendant had reputation of being a feeble-minded man and was generally known as crazy was not error since insanity is not proved by reputation.
3. HOMICIDE.
In murder prosecution, exclusion of evidence that defendant did not act like a man with "good sense" was not error, since the issue was whether he was in fact insane when homicide was committed.
4. CRIMINAL LAW.
In murder prosecution, witness' testimony that he figured defendant was crazy was admissible where witness had stated the conduct of defendant on which opinion was based, but error in the exclusion of the opinion was cured where witness immediately thereafter testified that defendant acted crazy.
5. HOMICIDE.
In murder prosecution, granting state's charge that mere queerness or unusual conduct is not alone any defense to crime unless mind of party committing crime, if any, was so affected at time of the commission thereof, that power to distinguish between moral right and wrong was destroyed, was not error.
6. CRIMINAL LAW.
In murder prosecution, defendant's requested instruction that evidence of good character may of itself create a reasonable doubt where otherwise no such doubt would exist was properly refused.
7. CRIMINAL LAW.
Evidence of a defendant's good character should go to jury like evidence of any other fact and should be left to the jury without intimation from the court touching its value.
8. CRIMINAL LAW.
Refusing instruction that if acts of defendant in shooting deceased were caused by mental disease or unsoundness which dethroned defendant's reason and judgment with respect to that act, which destroyed his power rationally to comprehend the nature and consequence of that act and which overpowering his will irresistibly forced him to its commission, then he was not legally answerable therefor, was not reversible error, in view of instruction given.
APPEAL from the circuit court of Clarke county; HON. ARTHUR G. BUSBY, Judge.
W.F. Latham and A.W. Covington, both of Quitman, for appellant.
The court committed error in refusing to permit appellant to prove by non-expert witnesses relative to his mental condition.
Underhill on Criminal Evidence, sec. 161; Wood v. State, 58 Miss. 741.
Instructions Nos. 1 and 2 given for the state are erroneous and do not correctly state the law and were highly prejudicial to the appellant.
The trial court was in error in refusing the instructions Nos. 8 and 9 requested by the appellant and the said instructions do correctly state the law and should have been given.
Powers v. State, 74 Miss. 777, 21 So. 657.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
We, of course, concede the law to be that a non-expert may give his opinion that a person is insane, but he should, before doing so, state the facts upon which he predicates his opinion. However, an inspection of the record will reveal that the court allowed this to be done by every witness which the defendant offered. The court was evidently following the law as announced by this court in Baird v. State, 146 Miss. 547, 112 So. 705; Bishop v. State, 96 Miss. 846, 52 So. 21; Bacot v. State, 96 Miss. 125, 50 So. 500.
Appellant refers to two of the state's instructions and says that they do not correctly state the law. He does not point out wherein, or in what particular, they are incorrect and it occurs to the writer that this is nothing more than an assignment of error, which is not argued, and, therefore, will be treated by the court as having been waived.
Bridges v. State, 154 Miss. 489, 122 So. 533; Chase v. State, 147 Miss. 694, 112 So. 785.
Appellant complains of the refusal of Instruction No. 8. This instruction would have told the injury that good character, of itself, was sufficient to raise a reasonable doubt. This, at one time, was said to be the law in Mississippi, but all cases so holding were overruled by Anderson v. State, 97 Miss. 658, 53 So. 393, and the opinion in this case has been followed up to this time.
Calloway v. State, 155 Miss. 706, 125 So. 109; Shelton v. State, 156 Miss. 612, 126 So. 390; Dewberry v. State, 168 Miss. 366, 151 So. 479; Harris v. State, 166 So. 392.
Appellant complains of the refusal of Instruction No. 9. This instruction would have authorized an acquittal on the ground of irresistible impulse. The refusal of this instruction by the court was proper for at least two reasons: first, there was no evidence that this killing occurred as the result of an irresistible impulse, and, second, if there had been, it would have been no defense.
Eaton v. State, 169 Miss. 295, 153 So. 381.
This is an appeal from a death sentence for murder. The evidence is not in dispute, and discloses a malicious homicide, unless the appellant is insane within the legal definition thereof.
The appellant did not testify, and offered only evidence of good reputation for peace and violence, and of his mental capacity. This evidence discloses that he was engaged in farming, attended to his business affairs in the usual and ordinary way, and some conduct which the witnesses seemed to think evidenced an unbalanced mind. He complains of the exclusion of evidence and of the granting to the state and of the refusing to him of certain instructions. The evidence said to have been wrongfully excluded is as follows:
1. At times "he would act stranger than he would at other times." This evidence, while of little value, might well have been admitted but its exclusion, on this record, is not reversible error.
2. He had the reputation of being a "feeble-minded man," and was generally known as "crazy Grant." No error was committed in excluding this evidence for insanity is not provable by reputation therefor. 2 Wigmore, Ev., 2d, sec. 1621.
3. He did not act like a man with "good sense." The issue was not whether the appellant acted with "good sense" but whether or not he was in fact insane when the homicide was committed, as to which this evidence would have proven nothing.
4. "Well, I just figured Grant was crazy." The witness who gave this evidence had stated the conduct of the appellant on which this opinion was based, consequently, it should have been admitted. This error, however, was cured for immediately thereafter the witness was asked, "Well, how did he act?" To which he replied, "He acted crazy." While this evidence was also objected to, there was no ruling on the objection and it was not excluded.
No error appears in the two instructions granted the state. One of which is as follows: "The court charges the jury for the state that mere queerness or unusual conduct is not alone any defense to crime, unless the mind of the party committing the crime, if any, is so affected, at the time of the commission, thereof, that the power to distinguish between moral right and wrong is destroyed; and even if one be abnormal or queer, still, if he be able to appreciate the difference between moral right and wrong as to the particular act, if any, then the law holds him responsible for that act regardless of such above abnormality or queerness, if any."
The appellant was refused an instruction charging the jury "that evidence of good character may of itself create a reasonable doubt where otherwise no such doubt would exist," and committed no error in so doing. "Evidence of a defendant's good character should go to the jury like evidence of any other fact, and should be left to the jury without intimation from the court touching its value." Anderson v. State, 97 Miss. 658, 53 So. 393. This case has been several times approved by this court, as will appear from Harris v. State, 175 Miss. 1, 166 So. 392. He was also refused an instruction: "that if you believe from the evidence in this case that the acts of Grant Williams, in shooting the deceased, Annie Price, was caused by mental disease or unsoundness which dethroned his reason and judgment with respect to that act which destroyed his power rationally to comprehend the nature and consequence of that act, and which overpowering his will irresistibly forced him to its commission, then he is not legally answerable therefor." If we assume, as we will for the purpose of the argument only, that this was a correct instruction (in which connection see Eatman v. State, 169 Miss. 295, 153 So. 381; Smith v. State, 95 Miss. 786, 49 So. 945, 27 L.R.A. (N.S.), 461, Ann. Cas. 1912A 23), no reversible error was committed in refusing it. Leaving out of view the state's instruction which fully covered the insanity issue, the court charged the jury for the appellant as follows: "if, upon the whole evidence, the jury find that the defendant, at the time of committing the act, was not of sound mind, and was unconscious that he was committing a crime, they should acquit him." A more liberal instruction than was probably required.
Affirmed.
Sentenced to be executed on Thursday, the 15th day of June, 1939.