State v. Maier

1. CONTINUANCE — CRIMINAL PROCEEDINGS. Section 1, c. 159, Code 1891, prescribes that “when an indictment is found in the Circuit Court of any county against a person for a felony, the accused, if in custody or if he appear in the discharge of his recognizance or voluntarily, shall, unless good cause he shown for a continuance, be tried at the same term.” 2. Continuance — Reversar—Criminal Proceedings. To justify a reversal by the appellate court upon the ground of refusing a continuance, such action of the inferior court must appear to be plainly erroneous. 3. Insanity — Evidence—Expert—Criminal Proceedings. On questions of insanity a witness who is not an expert is allowed to express his opinion, where he has personal knowledge of the facts on which his opinion is based. 4. Insanity — Evidence—Expert—Criminal Proceedings. On the direct examination the questions put to the expert must be framed hypothetically, unless there is no conflict of evidence as to the facts, or unless the expert is personally acquainted with them. 5. Insanity — Evidence—Expert—Criminal Proceedings. Where witnesses are examined by the State in rebuttal on the question of insanity, who have had transactions with the prisoner and have known him well for months and years immediately preceding the killing, it is not error to permit the State to ask such witnesses, whether or not they had ever observed anything about the prisoner, or in what he said or did, that indicated insanity. 6. Insanity — Murder—Instructions—Criminal Proceedings. The indictment following the form prescribed by the statute charged among other things, that the prisonor had “willfuily and deliberately murdered the deceased, M. Maier.” On the motion of the State the court gave the following instruction to the jury: “The court instructs the jury that, if they believe William Maier murdered Marie Maier, as charged in the indictment, and had at the time sufficient power of mind to distinguish, between the right and wrong of such act, although they may believe he suffered from mental aberration as to other matters, the verdict ought to be ‘Guilty.’ Such instruction was not erroneous. 7. 'New Trial. A new trial, asked' on the ground that the verdict is contrary to the evidence, ought to be granted only in the case of plain deviation from right and justice.

Statement of the case by Holt, Judge: On the 23rd day of April, 1892, in the Circuit Court of Ohio county, the prisoner, William Maier, was tried for the murder of his wife, Marie Maier, found guilty of murder in the first degree, and sentenced to be hanged. Various exceptions were taken by the prisoner to rulings of the court upon which he has obtained this writ of error. The learned judge, before whom the case was tided, on overruling the prisoner’s motion for a new trial, filed a written opinion, in which he sets out, reviews, and discusses all the points of exception to his rulings except the instructions given on behalf of the State. The following is his opinion : “1. It is claimed that the court erred in overruling the prisoner’s motion for a continuance. This motion was based (a.) on the prisoner’s own affidavit, which states, in substance, that when a boy about nine years of age he received a violent blow upon his head, caused by a brick falling from the second story of a house, which rendered him totally unconscious for a long period of time, and from the effects of which he has never fully recovered; that at times the effects of said blow make him utterly incapable of doing a rational act, especially when laboring under excitement; that his father is crazy at times, and his grandfather, on his father’s side, was considered unsound, and reputed to be mentally unbalanced ; that the only witnesses by whom he could prove these facts were his father, John Maier, his mother, Kate Maier, Dr. Ocker, and others, all who live in Aalen, Wurtemburg, Germany ; and that, if given until the next term of court, he could pi’oduce the testimony of said witnesses; and (6) on the affidavits of his counsel, to the effect that they had received information (which the affidavit details) which rendered it proper that a further and complete investigation into the prisoner’s sanity should be made ; that sufficient time had not been given them to prepare a proper defence for the prisoner; and ‘that the crime with which said Maier is charged has caused intense excitement and consternation in this community, which excitement has not yet subsided, and renders it very improbable, in the nature of things, that a jury would at this time venture to render any verdict in opposition to such a defined and unanimous sentiment againt the accused.’ “Section 1 of chapter 159 of the Code provides : ‘When an indictment is found in the Circuit Court of any county against a person for a felony, the accused, if in custody, * * shall, unless good cause be shown for a continuance, be tried at the same term. If any witness for the accused be a nonresident of the state, * * * the accused may present to the court in which the case is pending, or to the judge thereof in vacation, an affidavit showing such fact, and stating therein what he expects to prove by such witness, his name, residence, or place of service and employment, and, if such court or judge be of the opinion that the evidence of such witness, as stated in such affidavit, is necessary and material to the defence of the accused on his trial, an order may be made by such court or judge for the taking of the deposition of such witness,’ etc. Hence the question arises, did the affidavits aforesaid show that the evidence of the prisoner’s father, mother, and I)r. Ocker, or any of them, was necessary and material to his defence ? “And, first, as to the blow the prisoner received in his childhood. He says in his affidavit that at times the effects of this blow make him utterly incapable of doing a rational act, especially when laboring under excitement; and that his father, mother, Dr. Ocker, and others, all of whom live in Germany, are the only witnesses by whom he can prove that fact. But, as the prisoner has lived in this country, and not in Germany, during the past eight years (as was disclosed in one of the affidavits filed in support of the motion for a continuance) the proof of that fact would be wholly unnecessary and immaterial to his defence, unless followed up by additional evidence showing that he had been affected in the same way, at times, during the past eight years, which additional evidence, according to his own affidavit, be was unable to produce ; while the facts detailed in the affidavit of his counsel, which they claimed indicated mental unsoundness at times, were based.solely upon hearsay, being unsupported by the affidavit of any witness who could testify to the truth thereof. “Second. As to the insanity of the prisoner’s father and grandfather. In State v. Christmas, 6 Jones (N. C.) 471, it was held : ‘Where hereditary insanity is offered as an excuse for crime, it must appear that the kind, of insanity proposed to be proven as existing in the prisoner is no temporary insanity, but that it is notorious, and of the same species with which other members of the family have been afflicted.’ And in Laros v. Com., 84 Pa. St. 200, it was held: ‘A court is not bound to hear evidence of the insanity of a man’s relatives * * * as grounds of a presumption of possible insanity, until, some evidence has been given that the prisoner himself has shown signs of his own insanity.’ Now, the pi’isoner in this case did not claim in his affidavit that his insanity was hereditary, but that it was the result of a blow received upon the head in childhood. Clearly, then, it seems to me that evidence of hereditary insanity was not necessary or material to his defence. “Third. As to the claim that sufficient time was not given counsel in which to prepare a proper defence for the prisoner. The affidavit shows that they had five days, excluding Sunday, for such preparation. There were no intricate questions of law involved in the case. The prisoner had but one defence, and that was insanity. No one regretted more than the court its inability to postpone the trial until a later day in the term; but, owing to the overcrowded condition of the docket, and the fact that the case. of State v. Garrison had in February, 1892, been set for trial on the 25th day of April, 1892, and that the result of that trial and the length of time it would probably consume were involved in so much uncertainty, it did not seem possible to name a later day for this case, with any assurance of a trial, than April 20th. That the time allowed counsel, however, for preparing for trial, was reasonable and amply sufficient for the purpose is shown conclusively (1) by the able defence they made for the prisoner, and (2) by the fact that, although more than four weeks 'had elapsed betwen the conclusion of the trial and the argument of the motion for a new trial, not the slightest intimation was given upon such argument, by affidavit or otherwise, of the discovery of any additional evidence, or of any fact that would upon a second trial have a tendency to produce a different verdict. “2. It is claimed that it was error to overrule the prisoner’s motion for a continuance because of the excited condition of the community. That the community was not excited to such an extent as to deprive the prisoner of a fair and impartial trial is shown by the fact that twenty qualified jurors were obtained out of a panel of thirty nine. “3. It is claimed that the prisoner’s counsel should have been permitted to ask the medical experts the following question: ‘Are not love and jealousy causes of insanity?’ A sufficient answer to this claim is that the question was not put in the hypothetical form. McMechen v. McMechen, 17 W. Va. 683; Bowen v. City of Huntington, 35 W. Va. 689 (14 S. E. Rep. 217.) It is true that there are two exceptions to the rule requiring such questions to be put in that form: (1) Where there is no conflict of evidence upon the material facts; (2) where the expert is personally acquainted with the material facts in the case. Rog. Exp. Test. 44. But this question did not come under either exception. While no witness contradicted the statement of the prisoner and of others that he loved his wife, yet his treatment of her, both prior and subsequent to their marriage and up to the commission of the murder, was before the jury, from which they might well have inferred that he never had any love for her; and it is not claimed that the experts bad any personal knowledge upon the subject. And what is said with respect to this question applies with equal force to all of the other questions that the experts were not permitted to answer. “4. As to the admission of evidence of the purchase of pennyrolal pills by the prisoner for his wife. This evidence was brought out by the prosecuting attorney on the cross-examination of the prisonei’, and it seems to me that it was a proper and legitimate subject for such examination. “5. It is claimed that the court erred in permitting the prosecuting attorney, on rebuttal, to ask the witness for the State what, if anything, they noticed about the prisoner that insanity. The right to ask this question is fully sustained by the ruling of the court in Kerr v. Lunsford, 31 W. Ya. 659, 678 (8 S. E. Rep. 493.) “6. The prisoner, in support 'of his motion for a new trial, files the affidavit of Edward E. Weichsel, to the effect that about two days before the trial commenced Jacob Keller, one of the jurors who tried the case, told him that if the prisoner was insane he should have been sent to the asylum before he had the opportunity to commit a coldblooded murder; that it was as cold-blooded a murder as he had ever heard of, and that the prisoner ought to be hung for it. Keller files a counter affidavit, in which he says that he does not know Weichsel; that he has no recollection of ever having had any conversation with him, or with any one else, about the prisoner or this case; and that he was notin any way influenced in his verdict by any bias, prejudice, or opinion previously formed. On his voir dire Keller stated that he was not sensible of any bias or prejudice for or against the prisoner; that he had formed to some extent, but had not expressed, an opinion as to his guilt or innocence; aud that, if sworn as a juror, he could discard that opinion, and be governed solely by the evidence -that would be introduced before him. In Smith’s Case, 7 G-ratt. 593, Juror Ayres, on his voir dire, stated that he had formed a decided opinion that the prisoner was guilty, which still rested upon his mind, and was still fresh and decided; and Juror Royster stated‘that he had * * * made up a decided opinion from what he had read, and that the recollection of that impresson was still fresh upon his mind, and that he would, if evidence to the same effect should be given in court, and none other was introduced on the trial, find the prisoner guilty.’ But as both these jurors were satisfied that they could discard their opinions, and give the prisoner a fair and impartial trial according to the law and evidence, they were held to be competent; and the ruling of the Virginia court with respect to these jurors was approved by the Snpreme Court of Appeals of this State in State v. Baker, 33 W. Ya. 319, 328, 329 (19 S. E. Rep. 639.) In State v. McDonald, 9 W. Ya. 456, Juror Chamberlain stated on his voir dire that he had not made up or expressed any opinion as to the guilt or innocence of the prisoner; and that he had not been a member of the grand jury that found the indictment against the prisoner. After the conclusion of the trial, however it was discovered by the .prisoner’s counsel that this juror had been a member of the grand jury that found the indictment and that he had voted for the finding. Yet the court refused to grant the prisoner a new trial on account of the misconduct of this juror, although no explanation whatever was made of such misconduct. In State v. Greer, 22 W. Ya. 800, 820, which was an indictment for the murder of Robert G. Maguire, Juror Scarberry stated on his voir dire that he had not formed or expressed any opinion as to the guilt or innocence of the accused. Upon a motion to set aside a verdict of guilty of murder in the second degree which was rendered in that case, the prisoner filed affidavits, showing that this juror had on one occasion before the trial expressed the opinion that ‘Greer ought to be hung for the murder’ of Maguire; on another that he ‘ought to be severely punished for‘killing’ Maguire, and on still another that he ‘ought to be sent to the penitentiary.’ And the Court of Appeals held thatthe lower court did not err in refusing to set aside the verdict an account of the misconduct of this juror, although the affidavits filed by the prisoner were wholly uncontradicted. These authorities show conclusively that, even if juror Keller had been guilty of the misconduct attributed to him,, which he denies, such misconduct would not justify the setting aside of the verdict. The other afficl avits filed by the prisoner as to the misconduct of this particular juror relate to statements made by him after the trial had been concluded. In Probst v. JBraeunlich, 24 "W. Ya. 356, the first point of the syllabus is as follows : ‘It is settled in this State, as a general rule, with but few, if any, exceptions, that the testimony ofjurorswill not be received to impeach their verdict.’ If the testimony of jurors, given under oath, will not be received to impeach their verdict, for a much stronger reason the unsworn, ill-cousidered, aiid thoughtless statements of jurors, made to third persons should not he so received. “7. It is claimed that the verdict is contrary to the evidence, and that a new trial should be granted the prisoner for that reason. In State v. Baker, 83 W. Va. 339, (10 S. E. Rep. 639) the court says : ‘A new trial asked On the ground that the verdict is contrary to the evidence, ought to be granted only in case of a plain deviation from right and justice, and not in a doubtful case, merely because the court, if on the jury, would have given a different verdict. Where a case has been fairly submitted to a jury, and a verdict fairly rendered, it ought not to he interfered with by the court, unless manifest wrong and injustice have been done, or unless the verdict is plainly not warranted by the evidence or facts proved.’ This case has been fairly submitted to a jury, and a verdict, which it seems to me is clearly warranted by the evidence, has been fairly rendered. Under these circumstances, it is not within my power to set that verdict aside, and grant the prisoner a new trial. The motion must therefore be overruled.” in error cited the following authorities: 1. — It was error to refuse the continuance asked by the defendant. — 9 Ga. 121; Thach. Grim. Cas. 516; 1 Head 49; 18 Ga. 467 ; 1 S. Rep. 421; 3 Am. Ency. 8Í3; Const. Art. Ill s. 14; 25 la. 67; 7 Gray 71; 117 Mass. 148; 2Va. Cas. 132; 2 Bach. 566; 31 Ind. 592; 17 Mich. 9 ; Code (1891) c. 159, s.l; 17 Cal. 123; 16 Ind. 192; 11 w'. Va. 726; 17 Gratt. 629. 2. — Itioas error to refuse to let certain questions be answered by experts. — Rog. Ex. Tes. 44; 20 Ohio 211, 224; 6 Kan. 46; 61 Ala. 16 ; 86 Pa. St. 344; 38 Ind. 143; 83 H. Y. 358, 366 ; 46 Mo. 224; 2 Bans. (NV Y.) 206 ; 14 S. E. Rep. 216. 3.— The rejection of material testimony was error; and prejudice to the defendant is presumed therefrom. — 14 W. Va. 227; 21 W. Va. 225; 31W. Va. 669. 4. — Non-professional ipitnesses are not permitted to express opinions as to the soundness of the mind of one charged with crime. — 42 H. Y. 282 ; 110 Mass. 477 ; 1 I. Y. 569; 55 H. Y. 636 ; 36 N. Y. 276; 34 N. Y. 190 ; 12 N. Y. 358 ; 1 Allen 511; 14 S. E. Rep. 999 ; 1 Whar. Ev. § 513. 5. — The test of rigid and ;wrong is not the proper criterion in determining the gwilt of one, •whose sanity is questioned. — Jucl. Arp. Insan. Ord. 427; Maud. Res. Ment. Dis. 198; 49 N. II. 399 ; Edm. 28 n.; 31 Lid. 485 ; 25 la. 67 ; 2 Brews. 546'; 43 Conn. 514; 19 Mich. 401; Whar. Ment. Unsound. & Psychs. Law § 120 ; Reyn. Test Insan. 38. cited the following authorities. 1. — To justify reversal on the ground that the refusal to continue-was erroneous, the error must be a plain one. — 27 W. Ya. s.11; 11 W. Ya. 703; 7 W. Ya. 447; 27 W. Ya. 32; 19 W. Ya. 323 ; 1 W. Ya. 145; 2 W. Ya. 187. 2. — The questions to experts were, properly refused, where no hypothetical. — 75 Ya. 875. 3. — -The questions propounded by the prosecuting attorney to the State’s rebutting witnesses were legitimate and proper.— Whar. Ev. (2d Ed.) § 451 and n. 1; 31 W. Ya. 659; 62 Me. 369; 12 Mich. 459; 51 N. II. 104. 4. — Instructions for the State are free from objections. — 20 W. Ya. 713; 28 W. Va. 297. 5.— The motion for anew trial was properly overruled. — 11 W. Ya. 745; 9 W. Ya. 456; 13 W. Ya, 160; 22 W. Ya. 802.