MATSON, J.
It is first contended that the court er
red in excluding certain competent evidence offered by defendant. Alleged evidence which it is contended the court erred in excluding was sought to be elicited 'from defendant. In the brief of counsel for defendant it is stated that defendant was not placed upon the witness stand “to present the material, competent, and relevant facts surrounding the homicide, but for the sole and only purpose of demonstrating the fact that defendant was insane.” In other words, it is contended here that the defendant was placed in evidence in the nature rather of an exhibit than as a witness, and that for such reason the ordinary rules of evidence should not be applied to his examination, but that the court should have permitted him to testify
ad libitum
to anything which came to his mind or which was called to his attention by counsel.
The law of this state is that persons of unsound mind at the time of their production as witnesses are incompetent to testify. Section 5050, Revised Laws 1910. Also, the defendant at his own request, and not otherwise, may become a witness in his own behalf.
Furthermore, a defendant offering himself as a witness subjects himself to all the rules of evidence governing other witnesses.
State v. King,
67 Wash. 651, 122 Pac. 323;
State v. Mattivi,
39 Utah, 334, 117 Pac. 31;
Smith v. State,
14 Okla. Cr. 348, 171 Pac. 341.
When the defendant offered himself as a witness in this case he vouched for his competency, and he was subject to the same rules governing his testimony as those which would apply to any other witness in the case. His competency as a witness was not attacked in the trial court, and defendant cannot be heard to complain in this court
that the trial court applied the ordinary rules, of evidence in its rulings upon the admissibility of his testimony.
We have carefully examined the record in connection with the alleged erroneous rulings of the court in excluding offered evidence, and find that the trial court was very liberal and favorable to defendant in ruling upon the admissibility of evidence, and, if any error was committed ¡by the trial court, the error was against the state and in favor of defendant in that the trial court permitted evidence to go before the jury which was clearly incompetent and immaterial, and had no bearing whatever upon the issue of the guilt or innocence, of this defendant.
Measured by the rules of evidence applicable to competent witnesses, the rulings of the trial court in excluding proffered testimony in this case were not erroneous.
It is also contended that defendant was prejudiced by certain remarks of the trial court made throughout the progress of the trial and in the presence of the jury.
We have examined the record carefully with reference of the numerous alleged remarks of the court which are quoted in the brief of counsel who now represents defendant. No objection was made to any of these remarks in the trial court. The remark¡s¡ were made in response to inquiries by counsel for defendant, and were in reply to arguments of counsel for defendant as to the admissibility of certain evidence. The remarks were certainly not considered prejudicial in the trial court, or else objection would have been made and a request directed to the court
to admonish the jury not to consider them. This was not done.
In the case of
Mitchell v. State,
7 Okla. Cr. 563, 124 Pac. 1112, it is held:
“Only those questions can be considered upon appeal, ¡ess jurisdictional, which were decided adversely to the pellant in the trial court.”
As no objection was made to the various remarks of the trial court complained of, or request that the court instruct the jury not to consider the same, and a ruling on such request adverse to this defendant, there is no question presented for review by this court under this assignment of error.
It' is also contended that the trial court erred m sustaining the motion of the state to strike from the record the testimony of M. L. McNeill, a brother of defendant, to the effect that defendant had another brother, who was at one time confined in an insane asylum at Topeka, Kansas,
The record relative to this assignment of error discloses that the witness M. L. McNeill was permitted to testify that defendant had had a brother who was confined in an asylum in the state of Kansas. On motion by the state this evidence was stricken from the consideration of the jury, but later, after the defendant had introduced other evidence in his- behalf, the court, upon motion of defendant’s counsel, withdrew his ruling concerning this evidence, and specifically instructed the jury to consider same. The alleged error, therefore, if any was committed, was cured by the subsequent ruling of the trial court in permitting such evidence to go before the jury.
It is also contended that the trial court erred in permitting certain nonexpert witnesses for the state in rebuttal to express their opinion as to the sanity of defendant. The objection here urged is that no proper predicate was laid as a foundation for this testimony.
We think this, assignment of error to be without merit. Each of the witnesses testified that they had lived neighbors to defendant for a number of years, had observed him in his everyday walks of life, had had -business dealings with him, had observed his manner of doing business, had conversed with him on various topics, had observed his ap~ pearence and conduct, and were then permitted to express an opinion that defendant was of sound mind. The ruling of the trial court permitting such witnesses, after stating the facts, to express such an opinion, is sustained by the decision of the Supreme Court of the territory of Oklahoma in the case of
Queenan v. Terr.,
11 Okla. 261, 71 Pac. 218, 61 L. R. A. 324, wherein it is held:
“On a trial for murder, where insanity is interposed as a defense, a nonexpert witness, after testifying to the acts, conduct, and appearance of the defendant, may state whether such acts, conduct, and appearance impressed him as being rational or irrational.”
It is also contended that the court erred in giving certain instructions to the jury on the question of insanity.
While we find no material error in any of the instructions given which would in any way prejudice the defendant had the defense of insanity been supported by competent evidence, yet in this case, in view of the fact that the expert witnesses for defendant testified that at the time of the commission of the homicide the defendant knew right from wrong, we are of the opinion that the burden placed
upon defendant to introduce evidence sufficient to raise in the minds of the jury a reasonable doubt of his sanity was not met in this case,
In the recent case of
Mary F. Roe v. State,
191 Pac. 1048 (No. A-3242), 17 Okla. Cr. 587, this court held:
“Under subdivisions 4 of section 2094, Rev.
Free access — add to your briefcase to read the full text and ask questions with AI
MATSON, J.
It is first contended that the court er
red in excluding certain competent evidence offered by defendant. Alleged evidence which it is contended the court erred in excluding was sought to be elicited 'from defendant. In the brief of counsel for defendant it is stated that defendant was not placed upon the witness stand “to present the material, competent, and relevant facts surrounding the homicide, but for the sole and only purpose of demonstrating the fact that defendant was insane.” In other words, it is contended here that the defendant was placed in evidence in the nature rather of an exhibit than as a witness, and that for such reason the ordinary rules of evidence should not be applied to his examination, but that the court should have permitted him to testify
ad libitum
to anything which came to his mind or which was called to his attention by counsel.
The law of this state is that persons of unsound mind at the time of their production as witnesses are incompetent to testify. Section 5050, Revised Laws 1910. Also, the defendant at his own request, and not otherwise, may become a witness in his own behalf.
Furthermore, a defendant offering himself as a witness subjects himself to all the rules of evidence governing other witnesses.
State v. King,
67 Wash. 651, 122 Pac. 323;
State v. Mattivi,
39 Utah, 334, 117 Pac. 31;
Smith v. State,
14 Okla. Cr. 348, 171 Pac. 341.
When the defendant offered himself as a witness in this case he vouched for his competency, and he was subject to the same rules governing his testimony as those which would apply to any other witness in the case. His competency as a witness was not attacked in the trial court, and defendant cannot be heard to complain in this court
that the trial court applied the ordinary rules, of evidence in its rulings upon the admissibility of his testimony.
We have carefully examined the record in connection with the alleged erroneous rulings of the court in excluding offered evidence, and find that the trial court was very liberal and favorable to defendant in ruling upon the admissibility of evidence, and, if any error was committed ¡by the trial court, the error was against the state and in favor of defendant in that the trial court permitted evidence to go before the jury which was clearly incompetent and immaterial, and had no bearing whatever upon the issue of the guilt or innocence, of this defendant.
Measured by the rules of evidence applicable to competent witnesses, the rulings of the trial court in excluding proffered testimony in this case were not erroneous.
It is also contended that defendant was prejudiced by certain remarks of the trial court made throughout the progress of the trial and in the presence of the jury.
We have examined the record carefully with reference of the numerous alleged remarks of the court which are quoted in the brief of counsel who now represents defendant. No objection was made to any of these remarks in the trial court. The remark¡s¡ were made in response to inquiries by counsel for defendant, and were in reply to arguments of counsel for defendant as to the admissibility of certain evidence. The remarks were certainly not considered prejudicial in the trial court, or else objection would have been made and a request directed to the court
to admonish the jury not to consider them. This was not done.
In the case of
Mitchell v. State,
7 Okla. Cr. 563, 124 Pac. 1112, it is held:
“Only those questions can be considered upon appeal, ¡ess jurisdictional, which were decided adversely to the pellant in the trial court.”
As no objection was made to the various remarks of the trial court complained of, or request that the court instruct the jury not to consider the same, and a ruling on such request adverse to this defendant, there is no question presented for review by this court under this assignment of error.
It' is also contended that the trial court erred m sustaining the motion of the state to strike from the record the testimony of M. L. McNeill, a brother of defendant, to the effect that defendant had another brother, who was at one time confined in an insane asylum at Topeka, Kansas,
The record relative to this assignment of error discloses that the witness M. L. McNeill was permitted to testify that defendant had had a brother who was confined in an asylum in the state of Kansas. On motion by the state this evidence was stricken from the consideration of the jury, but later, after the defendant had introduced other evidence in his- behalf, the court, upon motion of defendant’s counsel, withdrew his ruling concerning this evidence, and specifically instructed the jury to consider same. The alleged error, therefore, if any was committed, was cured by the subsequent ruling of the trial court in permitting such evidence to go before the jury.
It is also contended that the trial court erred in permitting certain nonexpert witnesses for the state in rebuttal to express their opinion as to the sanity of defendant. The objection here urged is that no proper predicate was laid as a foundation for this testimony.
We think this, assignment of error to be without merit. Each of the witnesses testified that they had lived neighbors to defendant for a number of years, had observed him in his everyday walks of life, had had -business dealings with him, had observed his manner of doing business, had conversed with him on various topics, had observed his ap~ pearence and conduct, and were then permitted to express an opinion that defendant was of sound mind. The ruling of the trial court permitting such witnesses, after stating the facts, to express such an opinion, is sustained by the decision of the Supreme Court of the territory of Oklahoma in the case of
Queenan v. Terr.,
11 Okla. 261, 71 Pac. 218, 61 L. R. A. 324, wherein it is held:
“On a trial for murder, where insanity is interposed as a defense, a nonexpert witness, after testifying to the acts, conduct, and appearance of the defendant, may state whether such acts, conduct, and appearance impressed him as being rational or irrational.”
It is also contended that the court erred in giving certain instructions to the jury on the question of insanity.
While we find no material error in any of the instructions given which would in any way prejudice the defendant had the defense of insanity been supported by competent evidence, yet in this case, in view of the fact that the expert witnesses for defendant testified that at the time of the commission of the homicide the defendant knew right from wrong, we are of the opinion that the burden placed
upon defendant to introduce evidence sufficient to raise in the minds of the jury a reasonable doubt of his sanity was not met in this case,
In the recent case of
Mary F. Roe v. State,
191 Pac. 1048 (No. A-3242), 17 Okla. Cr. 587, this court held:
“Under subdivisions 4 of section 2094, Rev. Laws 1910, the test of criminal responsibility for committing an act which is declared to be a crime is fixed at the point where the. accused has mental capacity to distinguish between right and wrong as applied to the particular act, and to understand the nature and consequences of such act.”
The defendant, having wholly failed to meet by competent evidence the burden which the law places upon him to raise a reasonable doubt of his sanity before he is entitled to be acquitted on the ground of insanity, cannot be heard to complain of any alleged errors in the instructions of the trial court on the question of insanity in this case.
We have carefully reviewed the record in connection with all the assignments of error relied upon for a reversal of this judgment. The evidence discloses a willful, deliberate, and,- in our opinion, a premeditated taking of human life, without apparent justification or excuse. The defendant was extremely fortunate that the .jury did not assess against him the death penalty. He had a fair and impartial trial according to the forms of law. He had. eminent counsel to represent him, both in the trial court and in this court. Having been justly convicted, fairly tried, and ably represented, he must suffer the consequences of his act.
The judgment of conviction is affirmed.
DOYLE, P. J., and ARMSTRONG, J., concur.