In Zenou v. State (1958), 4 Wis.2d 655, 668, 91 N.W.2d 1208, this court stated that if the evidence in one reasonable view would suffice to prove the guilt of the higher degree of crime beyond a reasonable doubt and if under a different but reasonable view the evidence would be sufficient to prove the guilt of the lower degree of crime beyond a reasonable doubt and also leave a reasonable doubt as to some element included in the higher degree but not in the lesser, the court could submit both degrees....Summary of this case from Kimmons v. State
June 4, 1958 —
June 26, 1958.
ERROR to review a judgment of the circuit court for Walworth county: M. EUGENE BAKER, Circuit Judge. Affirmed.
For the plaintiff in error there was a brief and oral argument by John J. Byrnes of Elkhorn.
For the defendant in error there was a brief by the Attorney General and William A. Platz, assistant attorney general, and Erwin C. Zastrow, district attorney of Walworth county, and oral argument by Mr. Platz and Mr. Zastrow.
On January 22, 1957, a warrant was issued upon complaint that Henri Zenou had murdered his wife Dorothy on January 21st. On February 16th, after certain proceedings before the county court, including a determination by the court that the defendant was then sane, arraignment, and entry of pleas of not guilty and not guilty by reason of insanity, the case was transferred to the circuit court for trial.
The jury found defendant guilty of murder in the first degree and judgment was entered March 22d, sentencing defendant to life imprisonment. A writ of error was issued upon application of defendant.
It was established and admitted upon the trial that Henri killed his wife. They had separated and she and their two children were staying at the home of Mrs. Margaret Robison at Delavan. On the afternoon of Monday, January 21st, he bought a jackknife and made an appointment with his wife, by telephone, to come to the Robison home. After talking with his wife in the Robison living room for ten or fifteen minutes, he began to cut and stab her with the jackknife. Mrs. Robison, who came into the room when Dorothy screamed, was unable to pull Henri away from her and telephoned the police and went for help. He inflicted about eighteen knife wounds, on Dorothy's arms, in locations indicating that she had raised them to protect herself, and on her face, scalp, neck, back, and chest. One wound in the back went through the chest wall and punctured the lung. Another went into the shoulder blade. The wound which caused death was in the left side of her neck where the left internal jugular vein was partially severed. She died in an ambulance before reaching the hospital.
Henri was thirty-four and Dorothy twenty-eight at the time of her death. They were married in December, 1954, at Vancouver, British Columbia. Henri was a native of Algeria and had been in the army in North Africa during World War II. After that he had been in Paris for a time and had served in the Israeli army as a volunteer for two years. He came to Canada in 1951.
In May, 1955, the Zenous moved to Chicago, and then to a cottage near Delavan, Wisconsin. Dorothy's parents had lived in Chicago and when they died early in 1955, she had inherited the cottage on Delavan Lake. The Zenous had two sons, one born just before their marriage, and one born in December, 1955.
Dorothy worked as a waitress in a restaurant in Delavan and Henri was also employed. They made improvements to the cottage. In the summer of 1956, Henri was away for a month on a trip to Algiers to visit his father. In September, after his return, they talked about moving to Florida and Henri went there to see how things were. His birthday occurred while there, and Dorothy sent him a greeting by telegram and also cards from the boys and herself. He returned to Delavan, and about the middle of November they all went to Florida. He worked on a construction job and she worked evenings from 5 p. m. to 1 a. m., at a restaurant.
Henri testified that about the middle of December she began to come home at four or five o'clock in the morning, instead of one o'clock, and that on January 1st she did not return at all until he went out and found her late in the day.
On January 3, 1957, they went to a lawyer in Daytona Beach and agreed to a divorce. They signed a document bearing the title of an action in a Florida court between Dorothy as plaintiff and Henri as defendant. It was designated, "Property Settlement Stipulation."
The stipulation recited that they had separated January 2d and provided that Dorothy should have custody of the children and Henri the right of reasonable visitation; that Dorothy had sufficient funds and income to support the children and would not look to Henri for their support; that Dorothy would convey the Delavan real estate to Henri, together with "furniture, furnishings, and fixtures thereon, subject to outstanding mortgage which the defendant will assume and agree to pay."
Henri left Florida January 5th, and drove toward New York, but wrecked his car on the way. He came to Chicago about January 13th and got a job. He got in touch with Raymond Carter, Dorothy's brother.
Dorothy had reached Delavan on January 13th. Margaret Robison, with whom she stayed, was employed at the restaurant where Dorothy had worked. Dorothy planned to leave January 22d to go back to Chicago and then to Florida.
On Friday evening, January 18th, the Carters took Henri to Delavan. He had quit his job and telephoned a neighbor at Delavan. The neighbor told him that "somebody broke the house and take everything."
The Carters and Henri went to the cottage when they reached Delavan about 10 p. m. They got in touch with Clyde Kingsbury, chief of police of the town of Delavan. Kingsbury testified that Henri was upset about his wife taking the furniture and he wanted to know why Kingsbury did not stop her. Kingsbury advised him to see an attorney, but also informed him that Dorothy was staying with Mrs. Robison.
The Carters and Henri arrived at Mrs. Robison's around midnight. Everyone had gone to bed. Mrs. Robison called the police. Dorothy had some conversation with her brother, but would not talk with Henri. Henri told the police officer, "She has a boy friend and I will kill her for this."
Carter testified that they stopped at a restaurant for coffee and sandwiches; that Henri said "he was all broken up and that I had to help him, and that I was his only friend, and he said if he lost everything, — his house and his two children, — that he would kill my sister and himself."
The Carters returned home. Henri stayed at the cottage, on a mattress on the floor, but there was no heat. The next morning his neighbors invited him to stay at their house, and he did so Saturday and Sunday nights.
Saturday morning Henri was at the restaurant where Dorothy had worked. He told Mr. Obee, the proprietor, that Dorothy had taken all the furniture and it must be stored at Mrs. Robison's; that he knew that Dorothy had another man. He said, "Dorothy would be sorry and so would Mrs. Robison."
Saturday afternoon Henri had coffee at the restaurant and had a conversation with Ralph Napper, who sat beside him. He showed Napper pictures of his children and said they were having trouble at home and that his wife had left him. "Then he went on to say if he should kill her to get over this trouble it wouldn't do any good in this country. He said over here people were against him and he didn't have a chance."
Late Saturday afternoon, Henri talked with Father McDermott, pastor of a church at Delavan. Father McDermott testified that Henri told of family difficulties and he advised Henri to see a lawyer. "His problems seemed to be more about property than anything else and that was out of my jurisdiction."
Sunday morning, about ten o'clock, Henri saw some men taking a truck from his house. His wife was selling it and Henri was not going to let them take it. Kingsbury was called and took Henri to the justice of the peace and Dorothy also appeared there. Kingsbury wanted Dorothy to sign a complaint charging Henri with disorderly conduct, but she refused.
Before Mr. Haight, the justice of the peace, Dorothy claimed the truck was hers. Henri talked about things which had occurred in Florida. Mr. Haight suggested Henri see an attorney. At one point the Zenou baby started to cry; Henri put his arms out to take the baby; she pulled the baby back so he could not take it, and Henri started to cry. Then Mrs. Zenou took the baby out to the car and came back without it. Henri told Mr. Haight, "I don't care about the truck, I want my babies."
Sunday evening Henri telephoned Mr. Williamson, an attorney at Delavan, and talked about half an hour. Except for the language difficulty, Williamson understood everything Henri said and Henri seemed calm and rational. They made an appointment for Monday morning. The conversation in the morning was at the office and lasted about an hour and a half. Henri told about the divorce and property settlement. Williamson telephoned the attorney in Florida, who verified what Henri had said. Henri told Williamson he had returned to Delavan intending to move into the cottage; he found the furniture gone and the truck sold; that he had been to the town police, the city police, and had made some contact with the sheriff or district attorney, and had talked to Father McDermott. "He was particularly concerned about the fact that his wife wouldn't let him see the children or call on her where she was living." Williamson testified that Henri was extremely upset, in a mood of desperation; very close to tears; ran the gamut of emotional reaction, — calm, angry, sad, belligerent, remorseful.
About 1:30 Monday afternoon Henri spoke with Mrs. Robison at the restaurant. He asked her to talk to Dorothy; that he would like to see the children and Mrs. Robison said she would see what she could do. Between two and three o'clock, Henri went to a store and bought a jackknife. About three he telephoned Dorothy. "She told him to come down but that he wasn't to stay very long."
Henri came to the house about 3:30. Mrs. Robison was in the kitchen. Dorothy let him in. They talked and apparently sat down in the living room. Dorothy said, "Hello, Henri," and said to the children, "Here's daddy." Henri spoke in French; the older boy ran to him. Three or four minutes later there was some conversation about their affairs. Henri appeared to be excited, but Mrs. Robison testified it was normal for him to be excited. Mrs. Robison heard Dorothy say "that he just came to see the children and that they had nothing further to talk about or discuss. . . . Then I heard her scream."
Mrs. Robison rushed into the living room. Dorothy was sitting in a chair. Mrs. Robison thought Henri was hitting her with his fist and tried to pull him off, but could not. She telephoned the police, then realized he had a knife, and ran to summon a neighbor. When they returned, Henri was seated, holding his son, and said, "Call the police, I have killed her."
When the police came, Henri was on the porch, holding his son, and told them, "I killed her." On the way to Elkhorn, he told the officers he was glad he killed her and that "A woman that leaves her man is no good and better I kill her." He told the sheriff that he purchased the knife and went to see his wife with the understanding that if he could not bring about a settlement of his marital troubles he was going to kill her; that he was not sorry but was only concerned about his two children.
Late Monday afternoon he signed a statement, written by a deputy sheriff. He had difficulty reading it, but it was read to him. In his testimony upon the trial he did not challenge the accuracy of the statement and indicated he had understood it. The material portion of the statement read:
"I have been having trouble with my wife Dorothy over our separation. On Jan. 19, 1957, I talked to her brother, Raymond Carter, and told him that if Dorothy did not agree to settle our affairs I would kill her. He tried to talk me out of this. On Monday Jan. 21st, I talked to my wife Dorothy on the phone. She told me that she did not want anything to do with me. This was about 3 p. m. I called her back again and she said I could come to the house in about one-half hour. I stopped at Beetows or Franklin store and bought a knife, a large jacknife, then I went to Dorothy's home at 517 So. 6th St. Delavan. She let me in the house and we started to argue at once, Dorothy told me again that she did not want anything to do with me. I could see that she would not co-operate so I took the knife out of my pocket, opened it, and started to cut my wife. I wanted to kill her and cut her several times. I am only sorry for my two children."
Henri testified in his own behalf. He did not contradict in any material part the testimony of others as to his acts and statements before and after the killing. Almost the only contradiction of any sort was that the sheriff testified that he asked Henri what would have happened to him in Algeria and Henri said he presumed he would be shot. Henri testified he had not said that, and "Maybe he no understand me. I tell him I no care if I shot." When asked on the trial what would happen to him in Algeria if he had killed his wife under these circumstances, he said, "Nothing, — one night in jail."
With reference to the time of the attack and just before, he testified:
"I make appointment with my wife and she put the telephone down and she no wanted to talk. After many, many calls she say I can come for fifteen minutes to see the children. . . . The telephone conversation? I no want my wife back, I no want her back, I only want to check the children. She say `What happened to the paper from Florida?' . . . Just `Get out, get out, I don't want anything from you. I don't want to do anything. If you want, kill yourself. Go to Algeria, go and do anything you want.' . . . I start thinking because I am thirty-four years old and I said now no hope, no help from priest, no help from police, nobody help, — my life gone. Everything black, — I don't know if I am in Algeria, France, America, — I don't know. This one idea come in my head people, — I said I never scare my wife, my wife she know I do nothing wrong in the life and now she sleep with boy and take furniture and everything, my children and everything, what is left for me? I am worse than I was in Algeria. . . .
"No hope, nothing left to me, no family, no country, no nothing. I go police, I go see priest, I go see lawyer, no help for me. God, I am here broke, no job, no house, no nothing. This idea come in my head, — I never scare my wife and she know I am sensible man. I said I go buy knife, — small knife, — and I go to Mrs. Robison's house and I scare my wife and talk to her and if she say `Henri, go to your lawyer and everything be alright' I can say I forget. So I go in Mrs. Robison's house and my wife opened the door and I still remember this, — I said `Dorothy please talk' and she just say I kick you out. I say to her I call Florida and everything and then she turn around to see the children and I saw Mrs. Robison pressing clothes and I said, `Margaret, talk to Dorothy' and she said `I have no business talking to her.' Then everything black like in Algeria, black, and I take this knife like this (demonstrating to jury) and go for Dorothy and she says `Henri, stop, go to your lawyer' and she started to take the knife from the hand and I cut, cut, cut, — everything black and after that I said `Call police while I am here, I have no place to go.'
"Q. At the time you struck Dorothy with the knife the first time, — the first blow, — what were you thinking of at that time? A. To scare her, scare my wife and make her realize. She no sixteen years old, — she twenty-nine.
"Q. Do you recall what happened from that time on? A. From that time on all black. . . .
"Q. From then all `all black.' What do you mean by that?
A. This means, honest my God, I have no power to call anybody. Just black, — I see nobody, — like what you call desperation, — no see anything, — just gone. This minute like desperation, — no see anything, — just gone.
"Q. Do you recall approximately how long in minutes that took? I mean from the time you got in the Robison house.
A. Half hour maybe, — forty-five minutes, — something like that. . . .
"Q. Did you think for awhile you were in Algeria? A. Yes, I think so, because I see everything in front of my wife."
A physician called by the state and two psychiatrists appointed by the court testified that Henri was not legally insane. The first doctor termed him emotionally unstable.
References to certain other facts will be made in the opinion.
The principal contention of the defendant is that the circuit court erred in refusing defendant's request for appropriate instructions and submission of forms of verdict on second-degree murder and manslaughter. In addition the defendant challenges acts of the court in excluding certain evidence, refusing requested instructions, and deleting certain facts from a hypothetical question. The defendant also claims that the interest of justice requires a new trial.
1. Submission of manslaughter. Manslaughter is now defined in part as causing the death of another human being "without intent to kill and while in the heat of passion; . . ." Sec. 940.05(1), Stats. That which will constitute "the heat of passion" which will reduce what would otherwise be murder to manslaughter "is such mental disturbance, caused by reasonable, adequate provocation, as would ordinarily so overcome and dominate or suspend the exercise of the judgment of an ordinary man as to render his mind for the time being deaf to the voice of reason; make him incapable of forming and executing that distinct intent to take human life essential to murder in the first degree; and to cause him, uncontrollably, to act from impelling force of the disturbing cause rather than from any real wickedness of heart or cruelty or recklessness of disposition." State v. Stortecky (1956), 273 Wis. 362, 372, 77 N.W.2d 721. It has been said that "`the provocation, in order to be sufficient in law, must be such as, naturally and instantly, to produce in the minds of persons, ordinarily constituted, the highest degree of exasperation, rage, anger, sudden resentment, or terror.'" 21 Am. Eng. Ency. of Law (2d ed.), p. 177, quoted in Johnson v. State (1906), 129 Wis. 146, 159, 108 N.W. 55. Giving defendant the benefit of every doubt, we may assume that on and after January 1st he had reasonable grounds to believe that his wife had been unfaithful, that, in taking the furniture and selling the truck, she was violating their agreement as to the division of property as he understood it, that he was frustrated by his inability to obtain an immediate solution of his difficulties from the authorities or through an attorney, that he resented Dorothy's unwillingness to discuss these matters with him on Monday afternoon, and that he felt he had been deprived of his right to see his children. None of these circumstances, either alone or in combination, meets the test of adequate provocation. His discovery of her interest in another man had become a remote circumstance by January 21st. None of the difficulties over the property should be expected to produce in the minds of persons ordinarily constituted the degree of passion referred to above. Just prior to the killing, he was visiting his children. Aside from the inadequacy of the provocation, there is the question of whether the evidence permitted a reasonable doubt of his intent to kill, hereinafter discussed. The court was clearly not required to submit to the jury a form of verdict and instructions on manslaughter.
2. Submission of second-degree murder. First-degree murder is now defined as causing "the death of another human being with intent to kill that person or another." Sec. 940.01, Stats. Second-degree murder is defined as causing "the death of another human being by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life." Sec. 940.02. If the actions and mental state of a defendant are found to be such as to make him guilty of first-degree murder with the sole exception that he does not have "the mental purpose to take the life of another human being," he is guilty of second-degree murder. The "depravity" referred to in the definition of second-degree murder is present as well in first-degree murder, the difference being the absence of the design to effect death. Montgomery v. State (1922), 178 Wis. 461, 466, 190 N.W. 105.
The test to be applied in determining whether lesser degrees of the offense charged are to be submitted on request is whether there is some reasonable ground in the evidence, in the judgment of the court, for a conviction of the lesser offense. State v. Stortecky, supra.
Putting it in another way, if the evidence, in one reasonable view, would suffice to prove guilt of the higher degree beyond a reasonable doubt, and if, under a different, but reasonable view, the evidence would suffice to prove guilt of the lower degree beyond a reasonable doubt, but leave a reasonable doubt as to some element included in the higher degree but not in the lower, the court should, if requested, submit the lower degree as well as the higher. The state's interest in justice is served by submission of both in such a case. Both the state and the defendant have a right to have the lower degree submitted so that the jury will not be subjected to the choice of either acquitting or convicting of the higher degree where it is really convinced of only the lower degree. Ordinarily, if a court is in doubt, it should submit both degrees upon request.
The evidence summarized in the statement of facts amply sustains the verdict of guilty of murder in the first degree. There is no dispute as to defendant's acts. There is overwhelming evidence of mental purpose to kill his wife. He bases his contention that second-degree murder should have been submitted upon his testimony describing his own state of mind. The real question is whether that testimony could result in a reasonable doubt of his mental purpose to kill. We assume that in refusing to submit second-degree murder the circuit court decided that it could not. We agree.
Other than Henri's testimony of what was in his mind, and possibly Mr. Williamson's estimate of Henri's emotional state four or six hours before, there was no evidence tending to show that Henri did not know what he was doing and intend the natural consequences. Several wounds, including the fatal one, could not have been inflicted by a mentally responsible person except with intent to kill. There was unchallenged testimony that Henri had made several statements about killing his wife. Immediately after the stabbing he said he had killed her.
Giving Henri's testimony the most favorable interpretation, it was to the effect that he bought the knife to scare his wife, that he struck the first blow or two in order to scare her, that thereafter he lapsed into a dreamlike state and that the blows he then struck were essentially involuntary. Assuming, that such testimony as to one's state of mind, standing alone, could be believed and result in conviction of second-degree murder and not first, that is not what is before us in this record.
Here it is an undisputed fact that shortly after the killing Henri told the sheriff that he had bought the knife for the purpose of killing his wife if they did not reach a settlement. He signed, understandingly, a written statement, summarizing oral statements, that "I wanted to kill her." The circuit court could properly determine that Henri's testimony contradicting, but failing to deny or explain the earlier statements, was so incredible that under no reasonable view of the evidence could there be a reasonable doubt of his intent to kill.
Although a judge has no power to direct a jury to convict, and in that sense has no power to determine whether under the evidence there is no reasonable doubt of guilt, it does not follow that in deciding whether to submit a verdict for a lower degree of offense he cannot determine whether the evidence permits a reasonable doubt of some element necessary to convict of the higher degree.
In a case involving somewhat similar facts, a defendant was found guilty of murder in the first degree. He had gotten into an argument with his wife and testified that she had called him bad names and that after this "`everything got black in front of [his] eyes and [he] took the knife'" and killed her. There the trial court had submitted a form of murder in the second degree but the defendant was complaining because of refusal to submit a form of verdict of manslaughter in the third degree. State v. Genova (1943), 242 Wis. 555, 8 N.W.2d 260. The court said at page 558, "under the evidence there was a premeditated design to kill, making the crime murder in the first degree unless the accused was insane at the time. There was no occasion, as matters developed, for giving the jury, even if it were so inclined, an opportunity to indulge in sympathetic compromise and fix the guilt as murder in the second degree or manslaughter in the third degree, . . ."
3. The court's refusal to receive certain exhibits offered by defendant. Exhibits 2, 3, 4, and 5 were photographs which corroborated certain of Henri's testimony which related to the circumstances in the background and was never disputed. He had testified that he had slept on a mattress on the floor at the cottage on the night of January 18th. Exhibit 2 was a picture taken in the cottage and showing that bed. He had testified to his labors in making certain substantial improvements of the property. Exhibits 3, 4, and 5 were pictures of him in and about a ditch which he had dug and in which he had laid sewer pipes. These exhibits related to matters substantially remote in time from the killing and Henri's testimony about them was undisputed. Whether to admit them or not was a matter in the court's discretion. Exhibit 9 was a postcard mailed from Henri in Florida to Dorothy at Delavan. It would not have been error to receive this postcard upon the same basis as the greeting cards and telegram from her dating from approximately the same time. All these items simply tended to corroborate Henri's testimony that they were then on good terms. The sending of this postcard was remote in time and added little, if anything, to the testimony and other evidence which were admitted. It was within the discretion of the court.
4. Refusal of instructions. Defendant requested an instruction that the presumption of the defendant's sanity shall prevail "unless and until such time as the evidence creates in the minds of the jury a reasonable doubt of his sanity or mental responsibility at said time." The court gave the instruction as requested except that it omitted the following: "This reasonable doubt may arise as well from evidence introduced by the state, or by the circumstances of the act charged, as from the evidence of the defense." The omitted language is taken from the opinion in Duthey v. State (1907), 131 Wis. 178, 189, 111 N.W. 222. It is followed in that opinion by: "and the proper instruction on that subject is simply that if, after considering all the evidence before them, there remains in the minds of the jury any reasonable doubt of sanity, their duty is to find the accused insane." In several portions of the instructions the court did tell the jury that it was to consider "all the evidence in the case" upon the issue of insanity. It is considered that there could be no prejudicial error in failing to include the language requested by the defendant.
Defendant requested another instruction, no part of which was given. It is conceded upon appeal that the last sentence of the instruction is not applicable to occasional or intermittent insanity such as would be the claim of defendant in this case. A trial court may properly refuse to give an instruction where a portion of it is improper. Sec. 270.21, Stats. The substance of the first portion of the requested instruction was in our view adequately covered in different language in the instructions given by the court.
5. The hypothetical question. Defendant called a psychiatrist as an expert witness. He was asked "assuming that a man thirty-four years of age on January 21, 1957, killed his wife with the use of a pocketknife and that he inflicted 18 or 19 blows to her body, and assuming that this man states on oath that at the time he did the killing everything went black, and assume further that he stated he felt that Satan came into his body, and assuming further that he stated at the time that he didn't see anything and that this period of laxness [blackness] lasted for half an hour, and assume further that he stated he thought he was in Algeria at the time, could you give us an opinion as to whether or not this man was sane or insane at the time he committed the killing?" Objection was made that some of the assumptions were not in evidence. The court ruled that the reference to Satan, the length of time of the period of blackness, and the reference to Algeria should all be left out of the question. The doctor replied that he had no opinion on those facts. He was then asked, "Why would you be unable to state an opinion?" and he answered, "Assuming that the man had blacked out I don't think it would be possible to state whether he was sane or insane." The transcript included in the bill of exceptions as settled by the court contains no reference to Satan although it does contain the answers quoted in the statement of facts with reference to being in Algeria and the lapse of half an hour or forty-five minutes while Henri was in the Robison house.
After the verdict a motion was made for the correction of the record of this testimony and the defendant produced affidavits of newspaper reporters, his counsel and one other, to the effect that the reference to Satan was made as well as a statement that he saw "comets and scorpions in front of my eyes." The district attorney, his assistant, and the sheriff all made affidavits to the contrary and the court resolved the matter by denying the motion to correct the record.
There was evidently some difficulty in reporting the exact testimony of defendant because of his difficulty with the English language. The reporter included a notation in the transcript as follows:
"Due to language difficulties and speaking in broken English, plus the defendant's manner of speaking very fast with many gesticulations this witness was most difficult to report verbatim in parts of his testimony and in spots all that anyone could do was to obtain the gist of his testimony."
The court correctly eliminated the assumption as to the length of the period in which things were all black. The period which Henri testified lasted half an hour or forty-five minutes began when Henri reached the Robison house. The "blackness" came on him later. The court incorrectly stated that the reference to Algeria had been stricken, but it is apparent that whatever the correct testimony was about Algeria, there was more to it than simply that Henri thought he was in Algeria. The court declined to change the reporter's transcript with reference to Satan.
It does not appear that the court's error, if any, with respect to the elements of the hypothetical question was prejudicial. The doctor interpreted the "blackness" as "blackout," which appears to mean loss of memory. It is not clear to us that he could have given an opinion if the question had been allowed to stand as framed; there was no offer of proof or other showing that the doctor would have been able to form an opinion if one or more of the deleted assumptions had remained in the question; the facts the doctor was asked to assume were not established except by testimony which was, as has been pointed out, contradicted by Henri's statements made shortly after the event.
6. New trial in the interest of justice. Defendant's counsel argues that defendant did not have a fair trial, citing several facts.
One was that two witnesses for the state testified that they did not like the defendant. This testimony was brought out by defense counsel on cross-examination.
When one of the state's witnesses was testifying, defendant "made a big commotion by talking and gesturing and even when ordered by the court to remain quiet he still continued causing a commotion." The court then said, "If the defendant refuses to remain quiet I shall have to order him gagged and I shall have to clear the courtroom." The defendant continued talking, the court sent the jury out, and then in chambers warned defendant that there could be "no crying out like you have just done in the courtroom" and explained that he would get his chance to testify later. The remark in the jury's presence about gagging defendant was unfortunate, but we can well assume that the provocation by defendant was great.
Defendant challenges, as leading, a question to which he objected at the trial. The testimony of an officer was:
"Q. Did he [defendant] make any other statements while you were driving over here? A. Not that I recall right now.
"Q. To refresh your memory, was any statement made relative to how long he had been thinking about this?
"Mr. Byrnes: I object as leading.
"Court: Objection overruled.
"A. That was after coming to Elkhorn he made the statement he would never do anything like that unless he took time to think about it. He said he had thought about it for two or three weeks, and now he was glad it was over with."
A question is not leading if it merely suggests a subject without suggesting an answer or a specific thing and even a leading question may be properly put to a witness after his memory on a particular subject is apparently exhausted if he has omitted a fact by reason of want of recollection. 5 Jones, Commentaries on Evidence (2d ed.), p. 4546, sec. 2325, and p. 4556, sec. 2329. No motion was made to strike the officer's answer as not responsive.
We are mindful of defendant's difficulty in expressing his thoughts in English and the possibility of bias against him. We conclude from our review of the record that he had a fair trial and that the verdict was proper.
By the Court. — Judgment affirmed.