Oborn v. State

126 N.W. 737, 143 Wis. 249, 1910 Wisc. LEXIS 277

• Court: Wisconsin Supreme Court
• Decided: October 4, 1910
• Status: Published

Opinion

The following opinion was filed Hay 24, 1910:

Maeshaxl, J.

The constitution (sec. 5, art. I) guaranteed the inviolability of the existing right of trial by jury; that, is, that it should continue as before the formation of the constitution. So the fundamental law contemplates a trial of all the issues in a criminal case before an impartial jury of twelve men, selected in the manner provided by law from the-vicinage where the crime was committed; that is of the previously ascertained jurisdiction within which the offense occurred. In harmony with that, sec. 7, art. I, of the constitution provides that “in all criminal prosecutions the accused shall enjoy the right to ... a speedy public trial by an-impartial jury of the county or district wherein the offense-shall have been committed; which county or district shall have been previously ascertained by law.” In harmony with both these constitutional provisions, the statutes regulating the trial of criminal causes where the defense of insanity -is interposed, provide for a trial of such issue and the general issue of not guilty as well before a single jury. Secs. 4679, 4697, Stats. (1898).

That defendant bas, as indicated, a constitutional right to have all the issues in Ms case, including any special issue of fact, particularly as to bis sanity, tried before a single common-law jury of twelve impartial men of tbe county where the crime shall have been committed, — has always been recognized in the jurisprudence of this state. Gaston v. Babcock, 6 Wis. 503; Bennett v. State, 57 Wis. 69, 14 N. W. 912; Schissler v. State, 122 Wis. 365, 99 N. W. 593. It follows that the trial in this case of the special issue in Marinette county before one jury and of the general issue of not guilty in Winnebago county before a second jury, was illegal, as claimed by counsel for the accused, unless he could and did waive his constitutional right to have the whole case submitted to one jury in one county.

The constitution makes no provision for a change of venue in a criminal case, so any such change must be referable to some statute which is in harmony with the guaranteed right, unless such right may be waived. French v. State, 93 Wis. 325, 67 N. W. 706. The Statutes, at sec. 4680 (Stats. 1898), provide for a change of venue in specified circumstances upon application of the accused. That contemplates competency to waive the constitutional right by invoking the-statutory privilege to a change and has been held valid on the ground of such competency in fact existing. The idea is that the trial must be held in the county where the crime shall have been committed, unless changed upon application of the defendant (Wheeler v. State, 24 Wis. 52; Bennett v. State, 57 Wis. 69, 75, 14 N. W. 912), and as the right to a change is purely statutory, unless it is invoked upon the terms and in the manner provided by the statute, it does not exist at all. French v. State, supra.

It must be observed that the decisions referred to deal, mainly, -with, constitutional and statutory rights, so when it is said that the “right to a change of venue depends entirely upon the statute” and “can he .had only” as the statute provides, that means can be had only as a mattér of right, not that it cannot occur by consent, the accused waiving his right.

As indicated, the very idea of the statute contemplates a constitutional privilege of an accused person to waive his right of trial in the particular county. It must not be lost sight of that the. statute respecting a change is valid only on that ground. Bennett v. State, supra.

So it follows that it was competent for the accused, in this case, to bind himself by a waiver of the right to a full trial, or any trial, in Marinette county, unless the statutory provisions contemplate a waiver in a particular way and upon particular .grounds, excluding all others, creating a disability, if none -existed, otherwise, to make a binding waiver upon other grounds and in other ways. It goes without saying that the ¡statute makes no provision for a change of venue in a criminal case for the reason or in the manner the one occurred in this case. Does the constitutional guaranty, or the statute, or both, create a disability in that regard ? Those questions are now involved.

The circuit courts of this state are courts, under the constitution, of very extensive jurisdiction. Each is a court for the whole state, restricted, however, somewhat in its activities as to taking jurisdiction in invitum, but not by consent. The circuit court for Winnebago county had jurisdiction of such subjects as that involved in this case, and must be held to have had jurisdiction of the subject matter of the particular cause of action, if it came to the court in a permissible way. The question of competency of the accused to waive his right to be tried before a single jury, and his competency to waive his right, as it is claimed he did, to a trial by such jury in Marinette county, may be treated together.

The doctrine of waiver, as applied to a criminal case, is a very broad one — quite as broad as in civil cases. It applies to constitutional as well as statutory rights. Emery v. State, 101 Wis. 627, 645, 78 N. W. 745; Lowe v. State, 118 Wis. 641, 96 N. W. 417; Stoddard v. State, 132 Wis. 520, 112 N. W. 453; Hack v. State, 141 Wis. 346, 124 N. W. 493.

An examination of the cited cases will show that no limit has yet been found in this court to the competency of an accused person in a criminal case to waive irregularities or rights, except the single instance, one of disability, in a capital case to waive the right of trial by twelve jurors: Jennings v. State, 134 Wis. 307, 114 N. W. 492, following the early case of State v. Lockwood, 43 Wis. 403, decided before the doctrine of waiver had attained the recognition which it has in recent years. In the judgment of the writer, the exception mentioned would not be made now if the court were permitted to treat the matter from an original standpoint. In Okershauser v. State, 136 Wis. 111, 116 N. W. 769, it was said that the rule of State v. Lockwood, supra, should not be extended, and that was emphatically affirmed in Hack v. State, supra. The saying in Emery v. State, supra, that the trend is in favor of the doctrine that a party in a criminal case may waive irregularities and even rights very much the same as in a civil case, Judicia posteriora sunt in lege fortiora, has been many times significantly illustrated in recent years. Constitutional rights have been held waivable in common with mere irregularities. The instances are very numerous. The cases cited are a few of the many.

In Bennett v. State, 57 Wis. 69, 14 N. W. 912, it was held that a party in a criminal case, irrespective of any statutory authorization, and in addition thereto, may waive constitutional rights. In In re Staff, 63 Wis. 285, 23 N. W. 587, it was remarked that any right secured by sec. 7, art. I, of the constitution to an accused person may be waived by him without authority of statute, as has often been judicially determined, except the right of a trial by jury. Many illustrations are given of sustained waivers of constitutional rights, among them waiver of the right to a trial in the county of the alleged offense and consent to a trial in a county hundreds of miles distant therefrom. Some regret seems to be there expressed because the court was not untrammeled, as. was the court in Iowa, to recognize that competency to waive extended even to a jury trial, the court saying that, even in such field, the right is not so sacred but that it may be waived by legislative consent, thus holding that the question of whether an accused person, in such field, may be bound by waiver, is a matter of public policy rather than constitutional disability.

So it seems to follow, logically, that it was competent for the plaintiff in error to waive his right to a full trial in Mari-nette county and his right to a trial before a single jury as well; to waive all things done, out of the ordinary, resulting in his conviction, which it is claimed affected fatally such conviction. Whether the waivers occurred or not depends upon the meaning of the stipulation. There is no controversy but that the accused waived any further proceedings before the first jury after the verdict was rendered on the special issue, and waived any further trial in Marinette county, and all objections to the case being taken up for such further proceedings as might be necessary to conclude it in Winnebago county. Did he do so with the understanding that such further proceedings would, necessarily, include a retrial of the special issue before the second jury, or only in case of the verdict on the special issue, on motion made in Winnebago county, being set aside for error ?

Looking solely to the stipulation for the change of venue, in connection with what was done under it, it seems that the understanding of all the parties, when they signed the agreement, W'as that the trial in Winnebago county would be taken up before a second jury in the condition in which it was left when the verdict of the first jury on the special issue was recorded. The meaning of this language seems quite clear:

“The jury now impaneled which has tried the issue of insanity . . . shall be discharged” and “the place of trial and venue of the action shall be changed from Marinette county to Winnebago county, Wisconsin, the defendant expressly requesting such change and waiving any irregularity in not proceeding with the issue of not guilty at this time and place, reserving however the right to move the court to set aside the verdict and grant a new trial upon the insanity issue. . . .”

Other language as plainly suggested a new trial of the whole case only upon the verdict on the insanity issue being set aside for cause. Do not the words “in not proceeding with the issue of not guilty at this time and place” by necessary inference suggest that the next thing to be done in the case was the trial of that issue, subject to the reserved right to challenge in Winnebago county,'for cause, the validity.of the verdict rendered on the special issue, the same as it might have been in Marinette county before the stipulation was made? It seems so to us. Moreover, we should feel sure that the learned counsel for plaintiff in error so understood the stipulation, when the .case was brought on for a hearing in Winnebago county, in the absence of his protest that he did not. Uo claim was at first made that the partial trial in Marinette county was superseded by the stipulation and what had occurred under it, so as to open up the case for trial in the whole. An ordinary motion was made, as might have been done in Marinette county before the jury there were discharged, for an order vacating the verdict for error. That motion treated the verdict already rendered, binding, so far as it went, unless the court should set it aside for some ground of error suggested.

Again, when the plea of former jeopardy was interposed, consent was incorporated therein to stand by the stipulation. There, for the first time, so far as the record shows, it appears-that a claim was made that the stipulation secured to the accused a new trial of the special issue, regardless of whether fatal error was committed upon the first trial. The language does not suggest that the result of the first trial was necessarily superseded by the mere circumstance of the suspension of the proceedings till again taken up before another jury in another county. It suggests that there was a stipulation, not for leave to move for a new trial of the special issue, or merely reserving the right to so move, but for a new trial of such issue, and the court had lost jurisdiction by denying it, rendering the accused competent to plead the former partial trial as a jeopardy not waived, and so precluding a second jeopardy. The idea expressed in the plea, “the defendant now offers to submit to a trial of said special insanity plea under and pursuant to the stipulation,” the trial court was unable to discover was in the stipulation, in letter or spirit, and we are likewise unable. The plea did not attempt to withdraw from the stipulation. It merely claimed for it, seemingly as a last resort, a meaning not found to be therein by the court nor by this court. If the learned counsel intended to incorporate such meaning in the paper, the words chosen to express it were most unfortunately selected.

It follows that the right of trial before a single jury of and in Marinette county, was not only effectually waived by the accused, but the jeopardy created by the partial trial in such county was waived by the consent to discharge of the first jury and conclusion of the trial before another jury in another county.

It is elementary that if, though an accused person once enters jeopardy, he consents, expressly or by necessary inference, to its being superseded, he may again be placed in jeopardy without- any violation of his constitutional protection against being so placed twice. Moreover, it is quite elementary that after jeopardy has been entered it is subject to necessary suspension without a formal verdict where the ends of justice, under the circumstances, would otherwise he defeated if it was not competent to suspend the trial, discharge the jury, and later impanel a second jury. State v. Crane, 4 Wis. 400; Benedict v. State, 14 Wis. 423; Thompson v. U. S. 155 U. S. 271, 15 Sup. Ct. 73. In the federal case the court held:

“Courts of justice are invested with authority to discharge a jury from giving any verdict, whenever in their opinion,, taking all the circumstances into consideration, there is sc manifest necessity for the act, or the ends of justice would! otherwise he defeated, and to order a trial hy another jury ^ and that the defendant is not thereby twice put in jeop*-ardy. . .

Under the foregoing it is considered that upon the emergency occurring, which in the judgment of the trial court and counsel upon both sides rendered further proceeding with the case for a considerable period of time practically impossible, it was within the competency of the court to supersede the jeopardy existing and discharge the jury, and certainly within such competency, the accused consenting. So there, was no former jeopardy existing when the trial was called in Winnebago county, interfering with the trial of the issue of not guilty before the second jury. The accused was a party to the agreement creating the conditions rendering it competent for the court to proceed with such trial. He was competent to bind himself to submit to the trial as it was had by-signing the stipulation after rendition of the verdict on the* special issue. He could not without permission of the court have withdrawn from such stipulation. He made no attempt to withdraw therefrom, but only claimed therefor a different meaning than seems to have been incorporated therein.

We are unable to agree with counsel for plaintiff in error that the evidence established insanity as a matter of law. We are rather constrained to believe that the jury were well' wax-ranted in reaching the conclusion that there was no reasonable doubt but that the accused was sane, in the legal sense, at the time of the homicide. Therefore, the court properly refused to direct a verdict in favor of the accused on the special issue.

We are unable to discover any prejudicial ruling on objections to questions propounded to experts who testified upon the special issue. It is suggested that the trial court ruled on such objections upon the theory that it was competent for a party calling an expert to propound to him and have answered hypothetical questions, omitting or including at pleasure matters covered by the evidence, leaving the.weight of responses to abide the judgment of the jury under all the circumstances. Counsel gathered that idea because of the court having remarked in overruling an objection, “The counsel has framed his own hypothesis; he is not obliged to take the hypothesis of the other, and if there are any assumptions in the question which are not proven by the evidence, why to that extent it destroys the value of the answer.” True, the counsel calling an expert has a right to frame his own hypothesis, but just as true it should be one reasonably covering an entire supposed situation according to the evidence. It should include, from a reasonable viewpoint, all elements disclosed by the evidence bearing on the precise point to which the expert’s attention is directed. But the viewpoint is that of the interrogator, not of the adversary attorney. True, as the court said, whether the facts assumed for the purposes of the question are true in fact, is for the jury to determine, and in case of a determination adverse to the questioner, to that extent it destroys the value of the answer. Really, we are unable to see the meaning in the court’s language which counsel attributes to it. Rightly understood, we do not see any difficulty with it. It means that the questioner had a right to state to the witness a hypothesis, reasonable from his viewpoint, subject to the judgment ,of the court, on the question of competency, as to whether it was reasonable from such point though it might appear not so from an adversary situation. It must be assumed, from aught appearing in the record, that, in testing questions ■objected to for competency, the court considered them with reference to whether they were justified by all the evidence and included, in a reasonable view of the case, all elements bearing on the precise subject of inquiry. That is all the rules require as this court has held. Schissler v. State, 122 Wis. 365, 373, 99 N. W. 593. In such field a trial judge has much latitude. The decision cannot properly be disturbed unless it is manifestly wrong and also prejudicial to the extent that if the error had not been committed the result of the trial might, within reasonable probabilities, have been different. This doctrine, as to rulings of trial courts on mere questions of competency, follows from the general rule that determinations of such courts on matters of fact are to be taken as verities unless manifestly wrong, and the rule of the Code that errors however numerous shall be regarded as inconsequential, unless it appears that they were in fact prejudicial, in that they may reasonably have led to a materially •different result than otherwise would have occurred. These general observations sufficiently answer the assignments of error as to questions propounded to experts on either side. They have been examined in detail without discovering prejudicial error within the rules stated.

The reputed wife of the accused was called as a witness, and to show her competency the record of a divorce action in a court of competent jurisdiction, and authenticated so as to be admissible as evidence under ordinary circumstances, was offered and received for the purpose of showing that the purported marriage of the witness with the accused was within one year after he was divorced from a former wife and so was illegal under Lanham v. Lanham, 136 Wis. 360, 117 N. W. 787. It must be conceded that if the marriage occurred as suggested, it was invalid, but it is claimed that it was not competent to prove the record by certification, in that such method violated the constitutional right of the accused tO' meet the witnesses face to face.

The witness sworn was the only one whose competency was. legitimately in question. That witness defendant met face to face. The person upon whose act the requisite character of the certified copy depended, was not a witness against the-accused in the constitutional sense. At most, he was a witness on the question of the competency of the purported wife-to he a witness in the case. The question is rather new, hut, logically, it seems that the constitutional right does not extend so far as to preclude the use of duly authenticated copies of public records on a criminal trial for the mere purpose of' establishing, on the issue before the court of competency, the-right of a witness to testify.

To meet the evidence as to the competency of Mrs. Oborn, so called, to testify, counsel for the accused offered in evidence the original record of a divorce action wherein, subsequent to the time of the purported marriage, she was divorced from him. Counsel contended that the judicial treatment of the relations between the parties at the time of such divorce judgment, as those of husband and wife, in effect, judicially-established such to be their status, till changed by such judgment. The record, as the court remarked, negatived the fact-that the parties entered into a marriage contract subsequent, to the void marriage, because such void marriage was the one, according to the finding, the action was brought, and the judgment purported, to dissolve. It seems that the mere treatment of the parties as man and wife in the divorce action, and j udicial dissolution of their purported relations, did not make-file void marriage valid. It merely established the status-of the parties toward each other as judicially separated and absolved from all obligations of a marital nature existing between them. The action was not to establish the status of the parties to be that of man and wife. Had that been the-purpose of the action it would have been binding generally.. The action and the result, dissolving any existing marital relations between the parties, did not, as to the public generally, establish such relations to be such as the parties claimed for them. So far as the action was in rem the res was the condition of subsequent singleness as to each other, not valid prior existence of marital relations.

So it seems that upon all the evidence before the court on the question of competency, the witness never in fact became the wife of the accused and so was competent to testify when she was called for that purpose.

Complaint is made because the court excluded evidence of the appearance of the accused some time after the homicide and while he was confined in jail, during a period when he was afflicted, as said, with an epileptic disturbance. There is no doubt but that actions of a person, within reasonable limitations, after a homicide committed by him, as well as before, may be competent on the question of sanity. This court has distinctly so held. French v. State, 93 Wis. 325, 338, 67 N. W. 706. But as there said, evidence of such subsequent conduct is not necessarily admissible. Whether it is so, is within the field of competency, where, as before indicated, a wide range of judgment is permitted and error of judgment is regarded as inconsequential, unless it appears that it may probably have materially affected the result. In such a situation as that presented to the court here, the remoteness of time, the situation and -surroundings, and many other things bearing on whether the incidents inquired about had such relation to the defendant’s 'condition of mind at the time of the homicide, or such relation as to render the evidence of any real substantial probative force in any reasonable view of the case, all had to be considered. Such a matter, as said in French v. State, supra, is addressed “in the first instance, to the sound discretion of the trial court.”

Erom the foregoing it is obvious that'it must be, not only a case of plain error, but prejudicial error, not prejudicial in the ancient sense of legal presumption of prejudice from the mere commission of error, but prejudicial as a fair inference •of fact, to justify a .court, upon review, in condemning a mistake in respect to rulings on the admission of evidence of acts •of a person after the fact bearing on his mental condition at the time thereof, or even finding that mistake of any sort was made. The alleged error in question falls well outside of that field.

The court was requested, on behalf of the accused, to instruct the jury to the effect that though the accused at the time of the homicide had sufficient mental capacity to enable him to know and appreciate the wrong of his act, yet he was legally insane, if by impaired will power, resulting from an .abnormal condition, he was unable to resist the impulse to do the deed. That was refused. It was, as claimed, good law Recording to some authorities, particularly Plake v. State, 121 Ind. 433, 23 N. E. 273. It is condemned, however, by numerous decisions in this state, notably State v. Wilner, 40 Wis. 304; Bennett v. State, 57 Wis. 69, 14 N. W. 912; Butler v. State, 102 Wis. 364, 366, 78 N. W. 590; Eckert v. State, 114 Wis. 160, 163, 89 N. W. 826; Lowe v. State, 118 Wis. 641, 660, 96 N. W. 417; Schissler v. State, 122 Wis. 365, 99 N. W. 593, though it must be admitted that in one of them, at least, language was used approving some such idea as at least not harmful error because of its liberality to the accused. The test declared in those cases is the well-known knowledge of right and wrong test.

The term “insanity,” as used in the special plea in a criminal case, means such abnormal mental condition, from any cause, as to render the accused at the time of committing the alleged criminal act, incapable of distinguishing between right and wrong and so unconscious at the time of the nature •of the act which he is committing, and that commission of it will subject him to punishment.

True, as indicated, there are things in some of the cases liable to lead to the belief that legal insanity may exist if, though the person be fully conscious of the wrong and its punishable character, he, because of a perverted mind, is. moved by an uncontrollable impulse. Eor instance, such theory was incorporated into the charge in Butler v. State, supra, in connection with and as an addition to the statement that legal insanity means such a perverted and deranged condition of the mental and moral faculties as to render a person incapable of distinguishing between right and wrong. That was approved, really, as not prejudicial, since it was the-doctrine most favorable to the accused and one announced in a famous case referred to. We will say, however, that the instruction given in such case does not possess the dignity of' having been approved by ultimate authority. Whether a refusal to give the element so said to be most favorable to the accused would have been regarded as fatal error, was not stated.

In Lowe v. State, supra, the giving of such so-called most favorable rule was held not error, to the prejudice of the accused, upon authority of Butler v. State, supra; Eckert v. State, supra, being also referred to. In that case complaint was made because the trial court in the charge preserved throughout, as the dominating feature, the idea that “if the defendant, at the time of the homicide, had sufficient mind to know right from wrong and understand the nature and quality of the act he was committing, then that he was sane in the law,” and that was unqualifiedly approved as a correct statement of the law. True, it was said to be “fully justified by and that it in fact closely followed what was said in Butler v. State " Consistency requires us to hold that it follows what was stated to be the rule rather than the most liberal ride. Whether the former or the latter was technically the correct rule, was not stated in Butler v. State.

That there is a wide distinction between the two rules seems plain. The so-called most liberal rula recognizes existence of legal insanity notwithstanding capability to distinguish between right and wrong and consciousness of the wrongfulness •of the particular act. The other does not. This court in Eckert v. State, supra, clearly reaffirmed the latter to he the correct rule. That is unmistakable because the court referred to the language of Chief Justice Shaw in Comm. v. Rogers, 7 Met. 500, as having become the reliable classic on the subject and incorporated into the text-hooks so as to be recognized, generally, as elementary. The following is the language:

“A man is not to he excused from responsibility if he has capacity and reason sufficient to enable him to distinguish between right and wrong as to the particular act he is then •doing, — a knowledge and consciousness' that the act he is •doing is wrong and criminal and will subject him to punishment. In order to he responsible, he must have sufficient power of memory to recollect the relation in which he stands to others, and in which others stand to him; that the act he is doing is contrary to the plain dictates of justice and right, injurious to others, and a violation of the dictates of duty. On the contrary, although he may he laboring under partial insanity, if he. still understands the nature and character of his act and its consequences; if he has a knowledge that it is wrong and criminal, and a mental power sufficient to apply that knowledge to his own case, and to know that, if he does the act, he will do wrong and receive punishment, — such partial insanity is not enough to exempt him from responsibility for criminal acts.”

Consistent with that view, in the more recent case of Schissler v. State, 122 Wis. 365, 99 N. W. 593, it was held that the trial court did not unduly restrict the test of insanity by impressing upon the jury the idea that the accused was legally sane at the time he did the act if he was then capable of realizing the nature and quality of the act, or that the act was wrong. The following instructions were approved as the ■correct statement of the law:

“The term ‘insanity’ as used in the special plea and issue of insanity made by the defendant, means such perverted condition of the mental and moral faculties as to render the person incapable of distinguishing between right and wrong, or unconscious at the time of the nature of the act he is committing.”

“If you find from the evidence that at the time of the alleged commission of the offense the defendant was suffering from mental aberration or sickness of mind produced by any ■cause, and by reason thereof his judgment, memory, and reason were so perverted that he did not realize the nature and quality of the act he was doing, or that he did not realize that it was wrong, you must find that he was insane, and for that neason not guilty.”

It is not without interest in the historical review of the •subject under discussion, that in neither of the later cases were the earlier ones of State v. Wilner (40 Wis. 304), decided in 1876, and Bennett v. State (57 Wis. 69, 14 N. W. 912), decided in 1883, referred to. In both the consciousness of right and wrong test was regarded as the correct one. In the latter case, except for other language in the charge considered, •covering an additional unwarranted element, this was approved :

“If the evidence satisfies you that, at the time when he killed Dr. Hogle, the defendant was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing; . . . then you ■should find that he was insane.”

That definite declaration of the correct rule is somewhat involved by a brief quotation, in discussing language condemned, from Ortwein v. Comm. 76 Pa. St. 414, 421. The •quotation, it should be remembered, was from that portion of the charge of the trial court respecting whether the accused was sufficiently sane to commit murder in the first degree, not whether he was wholly irresponsible. The court said that one’s criminal responsibility exists, to some extent, so long as his perception between right and wrong exists.

Thus it will be seen that one should not be misled into the belief, from the approval in Butler v. State, supra (102 Wis. 364, 78 N. W. 590), of a stated test of insanity as being a correct formulation of the most liberal rule, and that the giving of it cannot he efficiently complained of by an accused person, that such most liberal rule is the correct rule, or that it ought: to be given in any case, or that the rule, eliminating the element which would dignify it as the most liberal, is not the correct one in fact. This court is not committed to the doctrine that one can successfully claim immunity from punishment for his wrongful act, consciously committed with consciousness of its wrongful character, upon the ground that, through an abnormal mental condition, he did the act under an uncontrollable impulse rendering him legally insane. One, at his peril of punishment, commits an act while capable of distinguishing between right and wrong, and conscious of' the nature of his act. He is legally bound, in such circumstances, to exercise such self-control as to preclude his escaping altogether from the consequences of his act on the plea of insanity, though his condition may affect the grade of the offense. Thus far the charity of the law goes and no farther. As said in Flanagan v. People, 52 N. Y. 467, as epitomized in the syllabus:

“The law does not recognize a form of insanity in which the capacity of distinguishing right from wrong exists without the power of choosing between them.”

Many foreign judicial illustrations might be given supporting the foregoing stated doctrine of this court. It is in harmony with the common law as indicated by a multitude of' English decisions and all text-books. It is denominated, for brevity, by some of the latter as the “right and wrong test.” In Bellingham3s Case, reported in Oollinson on Lunacy, 650, Lord MawsRield charged the jury that “the single question for them to determine was whether [the accused] when he committed the offense charged upon him he had sufficient understanding to distinguish between good from evil, right from wrong; and that murder was a crime, not only against the law of God, but against the law of his country.”

That test of power to distinguish, between right and wrong, so formulated by Lord MaNSEield, is in substantial harmony with English authorities as far back as 1706, at least, and is said to have ever since been followed in England “as the only one to mark the line between sanity and insanity, responsibility and irresponsibility.” Lawson, Insanity as a Defense to Crime, 552.

In M’Naghten’s Case, 10 Cl. & F. 200, which is a leading English authority at the present day, it was held that if the accused was conscious that the act was one which he ought not to do, and if the act was at the same time contrary to law he was punishable, he was legally sane. Lawson, Insanity as a Defense to Crime, 231. That has been adopted in the great majority of state and federal courts, while moral insanity, or irresistible impulse accompanied by consciousness of right and wrong doing, as legal insanity, has been recognized in but a very few jurisdictions, and in some of them not consistently. Those ideas are spoken of, rightly, as dangerous and as having-taken hold most firmly in Kentucky.

In U. S. v. Shults, 6 McLean, 121, Fed. Cas. No. 16,286, the law was very tersely stated thus:

“If . . . defendant in violating the mail knew he was doing wrong and that he was liable to punishment for the act, he is a proper subject for punishment.”

With like commendable brevity, it is said in U. S. v. Young, 25 Fed. 710, for a syllabus:

“The legal test of the accountability of -a criminal for his acts is his mental ability, at the time of the commission of the crime, to discriminate between right and wrong, with respect to the offense charged.”

That was referred to in the opinion as the “famous knowledge of right and wrong test’ adopted by the court after long discussion and formulated by the House of Lords in 1843.” M’Naghten’s Case, before referred to.

In New York the same doctrine was adopted (Willis v. People, 32 N. Y. 715), though there were many attempts to engraft onto it modifications in accordance with the views of medical experts. In Freeman v. People, 4 Denio, 9, and Flanagan v. People, 52 N. Y. 467, a like effort was made. It was answered by reaffirming the doctrine announced by Tindal, C. J., in M’Naghten's Case, 10 Cl. & F. 200, as of the highest authority and the sound rule. Contrary medical and scientific authority was emphatically rejected. The matter was regarded of sufficient importance to warrant special treatment by Justice ANDejews, resulting in its being held that “capacity of the defendant to distinguish between right and wrong at the time the act was done” was the only safe test; that he who is capable of knowing one from the other is bound, in law, to choose the right one regardless of the notions of some as to moral insanity or irresistible impulse. It was said that “the vagueness and uncertainty of the inquiry which would be opened and the manifest danger of introducing the limitations claimed into the rule of responsibility, in cases of crime may well cause courts to pause before assenting to it.”

Notwithstanding the emphatic adoption by the New York court of the capacity to distinguish between right and wrong test, as indicated, the pressure by eminent alienists to engraft onto it the irresistible impulse element, and others, was such that the legislature,* evidently intending-to guard the jurisprudence of the state from falling into confusion, or the safe rule from being departed from to the impairment of the safety of human life, incorporated it into written law. People v. Taylor, 138 N. Y. 398, 34 N. E. 275. The court there said that the eminent alienists who were disposed to criticise the rule and claim that a person should be held legally insane when by reason of an abnormal mental condition he acts under an irresistible impulse, should address themselves to the lawmaking power; that as the matter stood, knowledge of the nature and quality of the act that a person is doing and that it is wrong, renders him legally sane. .We should say, in passing, that the written law remains the same in New York as it was at the time of such suggestion in 1893.

This lengthy discussion of the subject of legal insanity seems warranted because of the evident misconception of what was held in Butler v. State, supra. We should further say in passing that the learned court, though having refused the requested instruction, gave others requested, going nearly as far as the one rejected and more liberal to the accused than the right rule demanded.

The court refused to specially instruct, as requested, that each jui’or should adhere to his own individual judgment from the evidence as to the defendant’s insanity and not join with others in finding him sane so long as he entertained an honest reasonable doubt on the question. It is, said this court in Franklin v. State, 92 Wis. 269, 66 N. W. 107, regarding refusal to give a similar instruction, — error. Such does not seem to be the case. The difficulty there was in failure to charge on the legal presumption of innocence, not because the court, in addition to such a charge, did not admonish the jury that before finding the existence of a fact, each should come to the conclusion in that regard from his own judgment based on the evidence. .When jurors are instructed properly they need not, necessarily, be told that they should not agree upon a verdict, unless individually convinced from the evidence of its correctness to the requisite degree of certainty. A person who has sufficient intelligence to sit on a jury knows, from the proper general instructions, that he should act according to his own judgment based on the evidence.

The claim made that it was error to refuse to instruct to the effect that as a matter of law epilepsy is a mental disease and that grief, agony, or terror is one of the producing causes of epileptic attacks, under the ruling of Kreuziger v. C. & N. W. R. Co. 73 Wis. 158, 160, 40 N. W. 657, and some other cases cited, does not seem to possess merit. It is argued that proof of epilepsy is proof of insanity and that tbe authorities so hold. As we read the citations, such is not the case.. They are to the effect that a person may be an epileptic and be perfectly responsible for his actions, except when suffering from an epileptic disturbance, called a fit; that epilepsy may cause insanity, but does not constitute it, and the two should not be confounded. Aurentz v. Anderson, 3 Pittsb. Rep. 310. That a person afflicted with insanity may yet have capacity to distinguish between right and wrong, and if so he-is legally sane. Fogarty v. State, 80 Ga. 450, 5 S. E. 782. That it is not sufficient to establish irresponsibility to show epileptic affliction, but it must be shown by evidence as a fact that epilepsy is a disease which affects the mind or produces insanity, and that there was legal insanity in the given instance. Walsh v. People, 88 N. Y. 458.

Thus, whether the accused was afflicted with epilepsy, and if so whether it was a mental disease, or whether it had progressed so far as to affect the mind, and if so whether the mind was so affected that the accused was not conscious of the wrongful character of his act at the time of the homicide,, were all matters of fact to be established by the evidence.

Complaint is made because the court refused to instruct the jury to the effect that if the accused intentionally pointed the gun at some other object than the deceased and the bullet was-accidentally deflected, striking the deceased with fatal effect, he was not guilty. The court gave the requested instruction by adding the words “of murder in the first degree.” The instruction might well have been refused altogether because of its not being warranted by any evidence in the case. As-we understand the evidence, the bullet went straight to the person of the deceased; passing through the door, it is true,, because of that being suddenly partly closed between the person of the deceased and the accused as the former saw the latter raise bis gun. But if there were evidence that the gun was not pointed at the deceased, but yet was handled so as to be imminently dangerous to him or some other human being and regardless thereof, though without design to effect the death of any one, the accused was, nevertheless, guilty of ■some homicidal offense.

It is suggested that the court, by way of recital, said to the jury that experts on both sides had given opinions as to the sanity of accused at the time of the homicide, and also instructed so as to limit the effect of evidence, on the general issue, of defendant’s mental condition, to murder in the first degree. It was not improper to speak of the obvious fact that the experts had expressed opinions on the question of sanity, leaving it to the jury to find whether, as matter of fact, the accused, at the time of the homicide, was sane or there was a reasonable doubt on the subject, the court suggesting, as was •done, that the jury were not bound by the opinion evidence; that it was for them to decide from all the evidence, under the test given for legal insanity, whether the accused was sane at the time of the homicide, and if they believed he was not, ■or were in reasonable doubt on the question, to find him not guilty on that ground. The instructions as to evidence of mental impairment expressly informed the jury that it bore on whether there was design to take human life, and informed them, fairly, that it bore on whether the accused was conscious of his act being dangerous to human life. That, it seems, was sufficient.

During the trial of the special issue, unknown to the accused or his counsel till after trial of the main issue, letters addressed to a juror, or jurors, after having been examined by the judge and any reference to the case eliminated, were allowed to be delivered. The judge explained the occurrences as pursuant to an announcement made in open court after the jury were sworn, to the effect that written communications might pass between jurors and their families, subject to inspection by tbe court in all instances to guard against anything improper so reaching them from the outside or the outside from them, and that no objection was made by counsel upon either side. No evidence of such announcement having, been made appeared upon the clerk’s or the reporter’s minutes, neither did counsel on either side have any recollection of it.

Further irregularities in respect to the conduct of the jurors is suggested in that, as claimed, two jurors, during the trial, while standing at the open window of their room talked with two persons outside. There was much proof to the effect that no such conversation occurred, except that a person from the street on the occasion of the claimed conversation, asked his father, who was on the jury, for some keys which, without saying anything, he passed out to the son.

The circuit judge explained that all written communications between jurors and outside parties, four or six in number, were between jurors and members of their families and that none were delivered during the trial which contained any reference to the case. The suggested irregularities with the jury were brought to the attention of the trial court as ground for a new trial.

Thus it will be' seen that not only is there no showing that the accused was prejudiced by the occurrence complained of, but prejudice is pretty clearly negatived. Courts’ should be slow to disturb verdicts upon the ground of alleged misconduct of jurors or interference with their deliberations. The motive to cast suspicion upon the result of a trial is so great, and the opportunity to do it so open and so easily embraced, especially in a case of great public interest, that, in most any such case, many little incidents actually occurring of a perfectly legitimate character may be easily given a false coloring, and other incidents, not legitimate, may be brought to the attention of the court without any reasonable ground for ;an inference of fact as to their having affected the result, and still other incidents may easily be falsely claimed to have occurred, so that unless such matters are held not to be sufficient to disturb the course of justice, in the absence of clear indications, and by preponderating inferences of fact, that they, within reasonable probability, at least, materially affected the result adversely to the complaining party, — the administration of justice would be intolerably embarrassed to the great detriment of public and private interests. Doubtless the constructors of the Code by sec. 2829, Stats. (1898), designed that such should be the guiding idea of judicial practice in this state when they there provided, in mandatory language, that:

“The court shall, in every stage of -an action, disregard any error or defect in the pleadings or- proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.”

That has been referred to as a most beneficent provision, precluding disturbance of judicial results by any inconsequential matter, and that, in the spirit of it, all irregularities and errors should be deemed inconsequential, in the absence of reasonably clear indications that the adverse party was prejudiced thereby, in that, otherwise, the result, as to him,, might, within reasonable probabilities, have been different. Under the guide of that statute judgments have been affirmed though grounded on records bristling with error, of which the following are significant illustrations: Mauch v. Hartford, 112 Wis. 40, 87 N. W. 816; Miller v. State, 139 Wis. 57, 94, 119 N. W. 850.

Such is believed to have been the general trend of the decisions of this court, though it must be admitted that it is not in harmony with expressions made now and then to the effect that from the mere occurrence of error prejudice is presumed. Doubtless, it was in great measure, because of such occasional expressions that the legislature, very recently, thought, by cb. 192, Laws of 1909, to challenge judicial attention anew to tbe declared public policy of tbe state in its written law, in providing tbat, no judgment in either a civil or criminal case shall be disturbed except for error which, in view of the whole situation, in the judgment of the court, affected the substantial rights of the party seeking to have it disturbed. That, in the judgment of the writer, is no more than emphasizing what .was covered by the early Code provision and has been, in general, intended by the court to be firmly and fully carried out. As such, it is welcomed by those who firmly believe it was unnecessary and does not really change the procedure in this state. At least, it aids in unifying judicial sentiment, if that were necessary, as to the proper method of administering justice in order to render right results as certain, speedy, and economical as practicable, and in eliminating seeming or actual departures therefrom in the past, as evidenced by Hack v. State, 141 Wis. 346, 124 N. W. 492.

Of course, the legislature did not intend to, and could not if it would, control the court in the administration of justice by the act of 1909. It was only intended to declare a public policy as to such administration which it is the duty, as well as the pleasure, of the court to conform to, so far as it reasonably promotes, or does not unreasonably interfere with, the exercise of their constitutional jurisdiction.

There is no longer, if there ever was, any reason for holding that a judgment should be reversed for mere errors, however numerous and inexcusable, or errors in the absence of its reasonably appearing as an inference of fact that the party seeking reversal was prejudiced thereby, in that had the error not occurred the result, as to him, might, within reasonable probabilities, have been more favorable. That must be the true test of prejudicial error, displacing, if necessary, the idea that prejudice is to be presumed from the mere occurrence of error and giving controlling dignity to the idea that prejudicial error is presumed against, this presumption to prevail till overcome, to tbe extent above indicated, by preponderating inferences of fact. To go further than suggested would probably invade the constitutional right to have the weight of probabilities respecting matters of fact determined by a jury er the trial judge according to circumstances.

In view of the foregoing it is thought that the claimed misconduct of the jury must be held to have been inconsequential. That is in harmony with the ruling in Cupps v. State, 120 Wis. 504, 97 N. W. 210, 98 N. W. 546. It is claimed to be out of harmony with Havenor v. State, 125 Wis. 444, 104 N. W. 116; Hurst v. Webster Mfg. Co. 128 Wis. 342, 107 N. W. 666; Du Cate v. Brighton, 133 Wis. 628, 114 N. W. 103; and Dralle v. Reedsburg, 135 Wis. 293, 299, 115 N. W. 819, all decided, as will be seen, before the recent legislative expression of public policy. In any event, they are in a class by themselves. They deal only with private communications between the trial judge and the jury. Doubtless, the rule thereof should not be extended in letter or spirit. No more need he said at this time.

We may well say, in closing, that notwithstanding the practice of allowing written communications to p,ass between jurors and outside parties in such a serious case as this, or any, under the circumstances shown here, is held to be harmless error, it must be condemned as improper. The fact that many irregularities may occur in the progress of a trial without affecting the result, should not lead to any laxity in judicial procedure and will not be regarded as any excuse for it. In capital cases, especially, the greatest care should be taken by trial judges to so administer affairs as to leave the final result free from any suspicion of improper influence. To that end the jury from the time of being sworn in the cause till deliverance of their verdict may well be kept as free as practicable from all, even appearances of, opportunity for communicating with outside parties, or receiving communications from them.

Thus we have reviewed the record of the two trials in this1 cause, giving careful attention to the complaints in quite minute detail without finding any harmful error, and very-little error at all. On the whole, the cause seems to have been very fairly tried and the accused found guilty in due-course. So the judgment must be affirmed.

By the Court. — So ordered.

A motion for a rehearing was denied October 4, 1910.