State v. McIntosh

1. Juror — Indifference—Triad Judge. — It is for the trial judge to determine whether a proposed juror is indifferent or not. Therefore, this court declined to interfere where the trial judge ordered a juror to stand aside, who, in answer to the question on his voir dire, whether he was opposed to capital punishment, said, “Well, I am inclined that way.” 2. Defence — Reasonable Doubt — Omission to Charge. — The judge was requested to charge the jury, that “While it is true that the defendant is required to prove that he was of unsound mind at the time of the homicide by the preponderance of the evidence, it is also true that upon the consideration of the testimony of the whole case, the State’s as well as the defendant’s, if any reasonable doubt remain in the mind of the jury, the defendant is entitled to a verdict of not guilty." This request was not refused, but was not approved or charged. Held, that it was a correct proposition of law, and the omission to charge it on request was error. Mr. Chief Justice MoIver dissenting, being of opinion that it was after-wards substantially charged. 3. Insanity as an Excuse for Crime. — A person on trial for the crime of murder cannot be excused under his plea of insanity at the time of the homicide, if he then possessed the power to distinguish right from wrong in the act itself — to recognize that the act complained of is either morally or legally wrong. 4. Charge on Facts — Homicide—Motive.—The trial judge did not err in charging, as requested by the State, that “in homicide cases no motive need be proved by the State, for it would be alarming, indeed, if no one could be found guilty for committing the most horrible deed, unless some external evidence could be shown of the motive which prompted him,” where the judge added, “I do not pretend by charging you that that is law, to make any comments on the facts of this case.” 5. Ibid. — Ibid.—-There was no error in charging: “Malice is the deliberate and well formed purpose to do the unlawful act; in this case, to take life without justification or excuse.” 6. Ibid. — Ibid.—In Commencing his charge by saying, “This case is one of murder against the defendant, beyond all question the gravest offence known to the law,” the judge did not charge upon the facts, but merely stated what was the charge preferred by the indictment. 7. Manslaughter — Use of Deadly Weapon — Charge.—The jury after long deliberation returned into the court room and asked for further instructions as to the difference between murder and manslaughter. The judge responded by general instructions, whereupon the foreman said: “That is just what is the matter with us. Suppose one of these jurors insults me, and I walk into that room and get a gun and shoot him down, would that be excusable?” The judge replied: “No words, however aggravating, will justify or excuse an assault where a deadly weapon is used ; but the apprehension of personal violence is a different thing. The law does not excuse an assault and reduce it to manslaughter if a deadly weapon is used — a gun or pistol, or anything of that sort.”. Held. that, this instruction, when construed with other parts of the charge, was not erroneous. Mr. Justice McGowan dissenting.

Before Fraser, J., Abbeville, June, 1892. This was an indictment against Singleton A. McIntosh for the murder of Edward N. Newby on December 24, 1891. The judge charged the jury as follows: Gentlemen of the jury: This case is one of murder against the defendant, beyond all question the gravest offence known to the law; and I think without any doubt, an investigation of a case of this sort involves the most serious duty that any citizen is called upon to decide, whether acting in the capacity of judge which I occupy or as juror which you occupy. I have no doubt that you will do your duty conscientiously and fearlessly. Murder is the killing of a person with malice aforethought, express or implied, and before taking up the requests to charge, it is, perhaps, better that I should indicate to you very briefly the different classes of homicide. Now, when a man takes the life of another accidentally, when he is in pursuit of some lawful occupation in a reasonably prudent way, he is not punishable. And, then, there is justifiable homicide, where an officer takes the life of a criminal in the lawful discharge of his duty. Then there is excusable homicide, where a man takes the life of another in defence of his own life or of his family. Where a man, being without fault himself, finds himself put in such a position by his adversary that he is in great danger of some great bodily harm, or of losing his own life, he has a right to strike to defend himself. When a man does not. seek a difficulty with another, he is not bound to run to defend himself. He must retreat to the wall and then defend himself. Then, another class of homicide other than these three, is known as manslaughter. Manslaughter is not alone the killing of a person in sudden heat and passion. Any unlawful killing without malice is manslaughter; a man may undertake to ignorantly administer dangerous medicines to another, or if one is killed through criminal carelessness — for instance, if a man carelessly shoots at a cow and, instead of killing the cow, kills a man. So, any killing is either mnrder, manslaughter, accidental, j ustifiable or excusable. Manslaughter, remember, is the felonious, unlawful killing without malice. If you come to the conclusion that it is necessary for you to draw a distinction in this case between murder and manslaughter, because, notwithstanding the special plea, the record stands before yon on the whole charge made by the State; if the State had put up no evidence at all, your verdict would be not guilty. So it is not only a question of soundness or unsoundness of mind before you, but the whole question of guilty or not guilty.. Malice is the main ingredient of murder. There need not be necessarily an old grudge or hatred. Malice is the unlawful purpose to do an unlawful act. With these general remarks, I will read the requests to charge: First. “The defendant is presumed by law' to be sane; the presumption can be removed by him, and if the evidence of unsoundness of mind preponderates, he is entitled to an acquittal.” That request has been a little enlarged, and I think states more correctly the exact position taken by our courts on the subject. Second. “While it is true that the defendant is required to prove that he was of unsound mind at the time of the homicide, by the preponderance of the evidence it is also true, that upon the consideration of the testimony on the whole case, the State’s as well as the defendant’s, if any reasonable doubt remain in the mind of the jury, the defendant is entitled to a verdict of not guilty.” Before going any further, I will state the general proposition of law, that when the jury are informed by the testimony that the defendant has killed the deceased, and they know nothing about it, the mere act of killing alone carries along with it the presumption of an unlawful intent, and would be sufficient to find a verdict of guilty, subject to qualifications which I will state later. Third. “If the jury believe that McIntosh was laboring under delusion caused by nnsoundness of mind when he committed the homicide, and that he killed Newby while acting as he thought in self-defence, supposing that Newby was attempting to take his life or inflict great bodily harm, the jury must acquit, though the danger was imaginary.” Well, that proposition is correct in the main, subject to this qualification: While the law generally is that he must show the jury that he had reasonable ground to believe that he was in danger, it is for the jury to say whether or not, in making out that defence of self-defence, that the ground was reasonable. But if, however, the jury come to the conclusion that there was no real danger, but that he actually thought that he was in danger of losing his life, whether that apprehension on his part grew out of nervousness or timidity or whatever it may be, yet in point of fact, if the apprehension was real, I have always advised the jury not to convict of murder, but to reduce it to manslaughter, because the malice and intent to take life were wanting. If, however, the defendant was of unsound mind, and the jury traces the killing to the unsoundness of mind, then it stands upon an entirely different footing, and the man would be entitled to an acquittal, because the act of killing was in consequence of that unsoundness of mind. Fourth. “Unless the jury believe that McIntosh was capable of acting from an evil intent, and that such evil intent had arisen in the mind before the act was committed, they should acquit.” I think that is law. Any length of time before the act was committed is sufficient; it is not necessary that it should be a day or a week or an hour. Fifth. “There is no legal test of insanity, but it is a question of fact, to be decided by the jury upon all tbe evidence in the case, as to the soundness or unsoundness of McIntosh’s mind at the time of the homicide.” In a modified sense, that is true. Insanity is a question of fact, yet there are certain principles of law laid down which you must consider in coming to your conclusion as to that question of insanity. Insanity is a disease of the mind which is in an unnatural and unsound state, and it arises from many causes, and these causes are sometimes physical and sometimes moral, as in a ease, for instance, of excessive drink or of grief. Its effect as a defence is the same in all cases, and if the mind becomes unsound as the effect of long continued use of alcoholic stimulants, it is equally as good as if the insanity is from any other cause. This insanity, however, is to be distinguished from mere drunkenness, which is no excuse for crime. It is true, that a man may be so much under the influence of alcohol when he commits a crime, that the jury may not find the intent to kill, which makes malice, and reduce the killing to manslaughter, but the want of criminal intent ought to be very clear. The act charged as a crime must be the consequence of a diseased state of mind — such condition of the mind, however, to be distinguished from “mere drunkenness” or “ungovernable temper,” or what is called “emotional insanity,” which do not excuse crime. Where the deprivation of the understanding and memory is total, fixed and permanent, it excuses all acts, and a man under temporary insanity is not in a condition to be guilty of crime. The insanity must be of such a kind as to deprive the prisoner of the use of reason, as applied to the act in question, and the knowledge that he is doi ng wrong in committing it. If, though somewhat deranged, he is able to distinguish right from wrong in his own case, and to know that he is doing wrong in the act committed, he'is liable-to punishment. The test is the capacity to distinguish between right and wrong as to the particular act with which the defendant is charged. If, however, the accused is of unsound mind, and the act is the effect of the unsoundness, even though aggravated by the alcoholic stimulants, he is not responsible, for the man of unsound mind cannot be held any more responsible for the improper use of alcohol than for the act itself, if committed without the use of alcohol. Now, in one of our own cases, decided a few years ago (State v. Bandy, 24 S. 0., 439), the Supreme Court laid this down: “lu order to relieve himself from responsibility for a criminal act by reason of mental un.soundness, the prisoner must show that he was under a mental delusion, or in some unnatural state of mind, by reason of mental disease, and that at the time of the act he did not know that the act he committed was wrong or criminal, or punishable, either the one or the other. Because, notwithstanding his mind may be diseased, if he is still capable of forming a correct judgment as to the nature of the act, as to its being morally or legally wrong, he is still responsible for his act, and punishable, as if no mental disease existed at all.” Sixth. “Although the law may presume malice from the act of killing, yet when the State has introduced testimony to prove the circumstances attending the homicide, from which a conclusion of malice or want of malice is to be drawn, the presumption of malice is uot applicable to the case, and cannot be relied on, but the jury must be satisfied of the existence of malice beyond all reasonable doubt.” The court adds: And satisfied from the testimony in the case. Seventh. “In ascertaining the soundness or unsoundness of the prisoner’s mind at the time of the homicide, the jury must take into consideration the evidence as to his whole life — the evidence as to epileptic seizures, alcoholism; as to his long continued and excessive use of alcoholic drinks; as to instances of insanity, paralysis, alcoholism, or other nervous diseases in other members of his family, lineal or collateral; as to the .severe blow on the head and its results; as to changes in conduct and manner; and as to his want of motive in the commission of the act.” That is all true, and the jury will take into consideration all of the testimony which is offered before and after, and it is for you to say what it is worth. The question for the jury to determine is not whether he was sane or insane afterwards — after the commission of the alleged act. Eighth. “The jury are to consider the state of McIntosh’s mind at the time the homicide was committed, and if the evidence produced establishes that he was unsound, he should be acquitted.” Well, I charge you that law subject to the qualification which I gave you a while ago, that he was not able to distinguish between right and wrong as to the action in question, for our courts.do hold that a naan’s mind -may be sound in some things and unsound in others. Ninth. “If the jury believe that the defendant has been proved of unsound mind at any time prior to the commission of the homicide, then this condition'of mind is presumed to continue until the contrary is established to the satisfaction of the jury.” That is the law in cases of insanity, if it is once established that a man is insane; if it is proved that a man has had delirium tremens a month ago and on yesterday he was charged with murder, he could not bring that up to prove that he was not responsible; but not so as to when a man is insane. If he is once proved to be insane, that continues until it is removed after that — that he has recovered. Request of solicitor to charge: “In homicide cases no motive need' be proved by the State, for it would be alarming indeed, if no one could be found guilty for committing the most horrible deed unless some external evidence could be shown of the motives which prompted him.” I don’t pretend, by charging you that that is law, to make any comments on the facts of this case. I think that is law, but I will say that it is sufficient to prove the unlawful intent,:and the proof of motive is only one of the modes of proving the intent to kill, and the want of motive is one of the modes which the defence can properly rely upon to ask the jury to infer that either the killing was not done by the defendant, or that it was not done by any improper intent. Malice is the deliberate and well formed purpose to do the unlawful act — in this case, to take life without justification or excuse. Intent is not necessarily synonymous with “’malice,” because, if the intent is properly self-defence, it is not unlawful. If a man is standing up where he ought to be, not doing any harm, and he finds a man about to take his life¿ he*can then take life to protect himself; therefore, intent in this case must be a criminal intent to take life. Gentlemen, I believe I have gone over the whole case. That question as to unsoundness of mind is for you entirely. The defendant is entitled to every reasonable doubt in this case, as in all other criminal cases — of every reasonable doubt. If you have any reasonable doubt that the defendant is guilty of murder, you cannot convict him of murder. If you have any reasonable doubt as to the defendant being guilty of manslaughter, you cannot convict him of manslaughter, but you must acquit, him. Give the record to the jury. 12.25 night, the judge was sent for and the jury came in the court room. The Court: Mr. Foreman, I am informed by the sheriff that you want some further instructions. The Foreman: Yes, may it please your honor, we cannot agree as between murder and manslaughter, and wish some further instructions on the point. The Court: Well, sir, murder is the killing with malice aforethought, express or implied — that is, the wilful and malicious intent to take life without excuse. Manslaughter is where the killing is not excusable or justifiable, but where the killing is done in sudden heat and passion, without malice. If at the time the shooting in this case took place the prisoner believed that he was in danger; if he believed that, although he had no right to believe it, but if he believed it, and shoots and kills, he ought not to be convicted of murder, but manslaughter. In self-defence, if a man really believes that he is in danger, the jury may think that he was not in danger, yet he thought that he was in danger, and he shot and killed, in that event it would be manslaughter. Whether with unreasonable belief through timidity or the nervous condition in which he was, and he shot and killed a man, he ought not to snffer for it, if he was laboring under that, great excitement. The Foreman: That’sjustwhat’sthe matter with us; suppose one of those jurors insults me, and I walk in that room and get a gun and shoot him down, would that be excusable1? The Court: No words, however aggravating, will justify’or excuse an assault where a deadly weapon is used, but the apprehension of personal violence is a different thing. The law does not excuse an assault and reduce it. to manslaughter, if a deadly weapon is used, a gun or pistol or anything of that sort. Self-defence is where a naan is in fear of receiving great bodily harm or of losing his life. Gentlemen, I hope you will be able to come to some conclusion. The jury returned the following verdict: “Guilty. Recommended to mercy.” The defendant appealed on the following grounds: 1. Because the Circuit Judge erred in ruling that a juror, W. G. Robertson, was excluded from sitting on the case because, when asked by the solicitor if he was opposed to capital punishment, he answered, “Well, I am inclined that way.” 2. Because the Circuit Judge erred in refusing to charge the jury as requested in defendant’s second request to charge. 3. Because the Circuit Judge erred in charging that the insanity which excuses must be of such a kind as to deprive the prisoner of the use of reason as applied to the act in question, and the knowledge that he is doing wrong in committing it. 4. Because the Circuit Judge erred in charging that the test of insanity is the capacity to distinguish between right and wrong as to the particular act with which defendant is charged. 5. Because the Circuit Judge erred in charging that if, though somewhat deranged, he is able to distinguish right from wrong in his own case, and to know that he is doing wrong in the act committed, a prisoner is liable to punishment. 6. Because the Circuit Judge erred in refusing to charge, as requested in defendant’s eighth request to charge, to wit: “The jury are to consider the state of McIntosh’s mind at the time the homicide was committed, and if the evidence produced establishes the fact that he was of unsound mind, he should be acquitted.” As to this the judge said: “Well, I charge you that law, subject to the qualification which I gave a while ago, that he was not able to distinguish between right and wrong, as to the act in question, for our courts do hold that a man’s mind may be sound in some things and unsound in others.” Wherein his honor erred. 7. Because the Circuit Judge erred in commenting on the facts in this case when he charged the jury as follows: “In homicide cases no motive need be proved by the State, for it would be alarming, indeed, if no one could be found guilty for committing the most horrible deed unless some external evidence could be shown of the motive which prompted him. Í do not [iretend, by charging you that that is law, to make any comments on the facts of this case.” 8. Because the Circuit Judge erred in commenting on the facts in this case when he charged the jury as follows: “Malice is the deliberate and well-formed purpose to do the unlawful act — in tliis case, to take life without justification or excuse.” 9. Because the Circuit Judge erred in commenting on the facts in this case when he charged the jury as follows: “This case is one of murder against the defendant — beyond all question, the gravest offence known to the law.” 10. Because the Circuit Judge erred in charging a principle of law which was not properly applicable to this case, under the following circumstances: The jury, after having been in the jury room ten or eleven hours, came iuto court at 1 o’clock in the morning to ask further instructions. At that time the foreman said to the judge: “Suppose oneof those jurors insults me, and I walk in that room and get a gun and shoot him down, would that be excusable?” The judge answered: “No words, however aggravating, will justify or excuse an assault where a deadly weapon is used.” 11. Because the Circuit Judge erred in charging that the law does not excuse an assault and reduce it to manslaughter, if a deadly weapon is used, a gun. or a pistol or anything of that sort.