French v. State

67 N.W. 706, 93 Wis. 325, 1896 Wisc. LEXIS 61

• Court: Wisconsin Supreme Court
• Decided: May 22, 1896
• Status: Published

Opinion

Pinney, J.

1: The right to a change of venue depends-entirely upon the statute. It is not guarantied by Const, art. I, sec. Y, or any other provision of the constitution. As the right exists only by virtue of the statute, a change of venue can be had only upon the terms the statute prescribes. The statute (S. & B. Ann. Stats, sec. 4686a) provides that-when a change of Avenue, in any criminal case in any court of record in this state, “ shall be applied for in any such court in the manner provided by law, on account of the-prejudice of the judge thereof, such court may, in lieu of awarding a change of venue therein,” make a request of the circuit judge in an adjoining circuit to hold the court where such action is pending, and try the same. By sec. 4680, it is contemplated that the application may be by petition. The right to a change of venue is thus made, by the statute,. ■subject to the right of the court, in its discretion, to call in some other judge to try the action, in which case no change for that cause is to be awarded. The statute does not authorize the defendant to make an application for a change of venue, coupled with the condition that the court shall not ■send the case out of the county or shall call in another judge to try it, thus dictating to the court its action upon a subject which the law has confided solely to its discretion. The filing of an affidavit of prejudice of the circuit judge, coupled with such condition, did not deprive the court of jurisdiction to proceed with the trial, but was, in law, equivalent to a request not to order a change of venue. The defendant cannot assign as error the fact that the court complied to that extent with his request, and it was therefore a matter of choice, and not of compulsion, that the defendant went to trial with the affidavit of prejudice of the circuit judge ■on file.

2. The statute (R. S. sec. 4700) providing for an inquisition, where there is a probability that the accused is, at the ■time of his trial, insane, and. thereby incapacitated to act for himself, to determine whether he is so insane, is substantially a provision in affirmance of a power the court had at common law in such cases, as abundantly appears from the authorities. 4 Bl. Comm. 24, 25; Crocker v. State, 60 Wis. 556, and cases cited. This provision is in aid of, and not in derogation of, the constitutional provision (art. I, sec.- 7) securing to the accused a fair and impartial trial. The result of such inquisition can have no legal effect upon the main issue.

8. We have considered the evidence, by affidavits and ■otherwise, upon the subject whether W. F. Shea was a proper and competent person to assist the district attorney in the prosecution of the case. We adhere to what was said in Biemel v. State, 71 Wis. 444, 451, that courts, in administering ch. 354, Laws of 1887, “should permit or select only such assistants as are as unprejudiced and impartial as the prosecutor provided by law;” and we are unable, from the evidence, to say that the discretion of the court was not fairly exercised in this respect, or that the appointment was not one proper to be made. There is no reason to think that Mr. Shea was not as unprejudiced and impartial as the prosecutor provided by law. There was no error in appointing him.

4. After the jury had failed to agree on the special issue of insanity of the defendant, a request on his part that the court proceed to another trial on that issue was properly denied, as the statute provides, in such event, the court shall proceed to trial on the main issue, when the question of insanity involved in such special issue “ shall be tried and determined by the jury with the plea of not guilty.” R. S. sec. 4697, as amended by ch. 164, Laws of 1883. There was no error in refusing to permit the defendant to admit the homicide in order to obtain the affirmative of the issue of his sanity or insanity involved in the special issue* with the general plea of not guilty, or in refusing to allow the defendant the opening and closing on such trial. Where the jury have disagreed on the trial of the special plea of insanity, the trial that follows is to be conducted in like manner as before the statute, and in all respects as therein provided; and the general verdict of guilty will conclude the special plea of insanity as well as the plea of not guilty. But, if it is found that the accused was insane at the time of the commission of the alleged offense, the statute requires that the jury shall also find if he is now sane. This is with the view of determining the question of his future restraint. The statute does not warrant any method of pleading or practice upon the trial of the plea of not guilty that would change the right of opening and closing from that which existed before it was enacted. To have allowed the defendant’s request would have been equivalent to permitting the defendant, in substance, to make an admission of the homicide, and, specially pleading or insisting upon any matter really included in the plea of not guilty of the crime charged,, as that he committed the homicide in self-defense, or the like, to obtain the opening and closing of the case. Such a practice is wholly unauthorized by the statute regulating pleadings and trials in criminal cases. The validity of ch. 164, Laws of 1883, in respect to specially pleading the defense of insanity, and the method of trial of such issue, as well as of the plea of not guilty, was fully sustained in Bennett v. State, 57 Wis. 69.

5. The exclusion of evidence offered on the part of the-defendant, of his acts, conduct, and declarations occurring subsequent to the fourth day- after the homicide, and offered as bearing upon the question of his insanity, was, we think, plainly erroneous. It is very generally agreed that evidence of the acts, conduct, and statements of the accused after, as well as before, the homicide, are admissible to show the mental condition of the accused, and as bearing upon the question of his sanity. 2 Greenl. Ev. § 371; 1 Bish. Crim. Law, § 385; Buswell, Insanity, § 216; Grant v. Thompson, 4 Conn. 203; Freeman v. People, 4 Denio, 9; People v. Wood, 126 N. Y. 249; State v. Lewis, 20 Nev. 333, 342. Such evidence is ad mitted on the ground that the facts are “ so connected with or correspond to evidence of disordered or weakened mental condition preceding the time of the commission of the offense as to strengthen the inference of continuance, and carry it by the time to which the inquiry relates, and thus establish its existence at that time; or else that they are of such a character as of themselves to indicate unsoundness to such a degree, or of so permanent a nature, as to have required a longer period than the interval for its production or development.” Comm. v. Pomeroy, 117 Mass. 143, 148; Bolling v. State, 54 Ark. 588; Comm. v. Trefethen, 157 Mass. 189, and cases cited.

The evidence offered appears to have been rejected on the ground that it related to matters subsequent in point of time, that it was cumulative, that it was evidence of the defendant’s own conduct while under confinement charged with the crime, offered in his own favor, and that it related to matters occurring after four days from the commission of the offense. While such evidence is competent, and from it the state of mind or insanity of the accused may be inferred, it may relate to actions or declarations so remote in time, or so altered in import and effect by intervening changes in the condition and circumstances surrounding the party, as to be wholly destitute of probative force, and for that reason, in the exercise of a wise discretion in the trial court, may be rejected. Shailer v. Bumstead, 99 Mass. 130; State v. Leehman, 2 S. Dak. 171. Still such discretion is not an absolute one, but the exercise of it, when the facts appear, is subject to revision in this court. Comm. v. Trefethen, 157 Mass. 180, 183. Whether evidence of such acts, conduct, or declarations would have any practical or material probative force must necessarily be the true guide in determining its admissibility. This is necessarily a question addressed, in the first instance, to the sound discretion of the trial court.

Very considerable evidence had been produced, consisting of acts, declarations, and conduct of the defendant on the day of the homicide, and for some time previous, which, in connection with other evidence, was sufficient to require the question of insanity to be submitted -to the jury. There was also evidence tending to show that,the defendant’s condition at the time was the result of a protracted fit of intoxication and drunkenness, caused by the excessive use of intoxicants; and it was claimed that while in this condition, and in a fit of drunken rage, he committed the offense. One of the medical experts testified, in substance, that if his disturbed and excited condition was due to the effects of drinking or the use of intoxicants, as soon as the effect of the intoxicants would fully pass away he would be restored to his normal condition. No expert testimony was necessary to establish this fact, really within the common experience of the intelligent and discerning. Thei’e was evidence to the effect that the defendant’s acts, conduct, and declarations had continued to be, in substance, the same as immediately preceding the homicide, until the end of the fourth day. Medicines had been administered to him with a view to restore him to his normal condition, but his condition remained, up to this time, practically unchanged. Under these circumstances, the ruling that restricted the proof of his acts, conduct, and declarations, as bearing upon the question of his sanity, was too strict, and was an unreasonably short limitation. We cannot sanction a rule that would arbitrarily limit the reception of such evidence in such cases to what may have occurred within a period of four days after the commission of the offense. The offer was to extend this proof to succeeding days, and to show the continuance of such condition, but the trial court held that the proof would be cumulative; and, for this and other reasons stated, it was rejected. The effect to be given to such evidence is for the jury, and that the facts and circumstances may be such as to detract from its weight or persuasive force is no ground for its rejection. It ordinarily consists of acts, declarations, or conduct occurring at different times, and observed by different persons, but, in its effect, is directed to the question of the defendant’s sanity at the time of the homicide. We are not aware of any rule in the law of criminal evidence that would sanction the rejection of such testimony, going to the main issue, on the ground merely that it is cumulative. The limitation was not as to the number of witnesses in respect to some one particular act, fact, or declaration, but to proof of successive acts, facts, or declarations after the fourth day, which might be shown by different witnesses, and all might tend to establish the defense. The right of the accused to have compulsory process to compel the attendance of witnesses in his behalf would be of little value if the court might arbitrarily refuse to permit them to testify on the ground that the testimony, although relevant, would be cumulative, thus determining the amount of evidence the accused might produce in his defense. The ruling of the court imposed an unreasonable limitation in point of time, and deprived the defendant of the right to produce relevant evidence that might show that, after a reasonable time had elapsed for his restoration to his normal condition, his mental condition and situation remained unchanged, and that they were not, at the time of the homicide, as claimed by the prosecution, the result of protracted and excessive intoxication, producing a fit of drunken excitement and fury. The defendant was thus deprived of proper means of rebutting this contention.

The case of Comm. v. Pomeroy, 117 Mass. 143, was relied on as sustaining the ruling of the trial court, but it is widely different and clearly distinguishable from the present case. In that case there had been no change of habit, conduct, or manner either before or after the homicide, but the normal condition of the accused (a boy of the age of fourteen years) continued throughout without disturbance or change. “ He ate with a hearty appetite, slept soundly and quietly, and in conversation and manner evinced no remorse or sense of guilt.” And, “ in the evidence relied on to show the mental condition of the defendant prior to the homicide, it was not contended that there were any marked indications of insanity, nor that, with the exception of an apparent absence of moral susceptibility, or want of moral sense, there was any relation or correspondence between the evidence preceding and that subsequent to the homicide, which gave the latter any especial significance.” It is proper to observe that in that case it was said that, “if the ruling at the trial had been based solely upon the length of time that had elapsed, there would be ground for an argument, assuming the evidence to have been in other respects competent, that the period of only eight or ten days was too strict a limitation of its admission to be a reasonable exercise of the discretion which rests with the court,” and which, as we have seen, is the subject of review. Comm. v. Trefethen, 157 Mass. 184.

It is impossible to lay down any general rule upon the question of remoteness in point of time of such acts, conduct, and declarations, which will apply to all cases alike, beyond that already indicated, namely, that the acts, conduct, or declarations must be so connected with, or related to, or result from, the mental condition of the accused at the time the offense was committed, as to throw light upon or illustrate such condition, and possess some material and practical probative force, and, when taken in connection with other evidence in the case, tend to show that the defendant was insane at the time of the homicide. The admissibility of such evidence in each case must be determined with reference to its own peculiar facts and circumstances, and we think, in view of the evidence, that the inquiry might have beep properly extended up to the time the defendant was first imprisoned in the state prison; but facts disclosed by the evidence may show, however, that this may be too long or too brief a limitation. If the defendant’s mental condition continued unchanged and substantially as it was for several days before and for four days after the homicide, this might warrant a still further extension of the period of inquiry. In Freeman v. People, 4 Denio, 9, evidence of experts as to the condition of the accused four months after the homicide was held competent as tending to prove that he was insane at the time it was committed. In any event, the period of inquiry should be sufficiently extended to include the subsequent acts, conduct, and declarations of the defendant, so far as they relate to, are connected with, or grow out of, or illustrate, or afford material evidence of, bis mental condition when the homicide was committed.

Although not objected to, one of the medical experts testified, in substance, that “ a man suffering from the delirium of delirium tremens has no more control over his actions, in that respect, than a man suffering from delirium produced from any other cause, but still he is sane.” It is proper to observe that such evidence should not be received. It is directly opposed to the established rule which affords immunity from the consequences of acts which would otherwise be criminal. “ Drunkenness is no excuse, but delirium tremens caused by drunkenness may be an excuse, if it produces such a state of mind as would otherwise relieve the party from responsibility.” Beg. y. Davis, 14 Cox, Grim. Gas. 564; Terrill v. State, 14 Wis. 288; and numerous cases cited by Justice Cassoday in Terrill v. State, supra.

For the reasons already given the judgment of the circuit court must be reversed, and a new trial granted.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded to that court with directions to proceed to a new trial of the special issue of insanity, and such other proceedings, if any, as shall be required by law; and to that end it is ordered that the warden of the state prison, in whose custody the said accused William G.French now is, do deliver him into the custody of the sheriff of the county of Ashland, who is required to keep him in his custody until discharged therefrom by law.