Reed v. State

Arnold, J.,

delivered the opinion of the court.

A non-expert witness who has had opportunities of knowing and observing the conversation, conduct, and manners of a person whose sanity is in question, may depose, not only to particular facts, but to his opinion or belief, formed from such actual observation, as to the sanity or insanity of such person. Wood v. State, 58 Miss. 741 ; 2 Taylor on Ev., § 1416; 1 Greenl. Ev. (14th ed.), § 440, note a; 1 Whart. Ev., § 451. After the statements made by the non-expert witnesses in this case as to their acquaintance with the appellant and their opportunities for observing his conduct and condition, it was error to exclude their opinions from the jury, based on these facts, as to his sanity or insanity. Of course, *409 the opinion of each such witness should have been drawn from facts known and stated by him, and not from the testimony of other witnesses.

It was not competent for the physician introduced as an expert, who knew nothing of the appellant, but was present and heard all the evidence at the trial, to express his opinion on the question propounded to him as to the sanity or insanity of the appellant, for the reason, that it was not shown that the witness was an expert on that subject. Russell v. State, 53 Miss. 367 ; 3 Greenl. Ev., § 5. It appears from the record that he was a graduate in medicine and a practicing physician, but not that he was conversant with insanity in any of its various forms, or that he had ever had the care and superintendence of insane persons, or that he had ever made the subject of mental disease a study.

The form of the question propounded to this witness — “ What is your opinion, based upon the testimony adduced at this trial, as to the sanity or insanity of the defendant, Irvin Reed, at or before the alleged shooting, on the 14th day of March, 1884?”— is objectionable because it involved the determination of the truth of the facts deposed to by the other witnesses, as well as the scientific conclusion to be drawn from those facts. Where the facts are admitted or not disputed, and the question thus becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though it cannot be insisted on as a matter of right. It is only the opinion of such witness on the facts, admitted or assumed, or which the jury may find to be proved in such case, that is admissible in evidence. 2 Taylor on Ev., § 1421; 3 Greenl. Ev., § 5; 1 Whart. Ev., § 452; Commonwealth v. Rugens, 7 Met. 500 ; Woodbury v. Obear, 7 Gray 467 ; Page v. State, 61 Ala. 16 ; Dexter v. Hall, 15 Wall. 9 .

The general formula of the question suggested by the authorities to be propounded to such witness is, that “If the symptoms and indications testified to by other witnesses are proved, and if the jury are satisfied of the truth of them, whether, in his opinion, the party was insane, and what was the nature and character of that insanity — what state of mind did they indicate, and what would *410 he expect the conduct of such a person would be in any supposed circumstances ?” 3 Greenl. Ev., § 5, and authorities supra.

If the witness states that the facts assumed indicate mental unsoundness, he may be inquired of in regard to the state and degree of mental unsoundness thus indicated, and how far it will disqualify the person from business or render him unconscious of the nature of his conduct. He should also be inquired of whether these facts are explainable in any other mode except upon the theory of insanity, and with what degree of certainty they indicate the inference drawn by the witness. 3 Greenl. Ev., § 5, note a; 1 Redfield, Law of Wills, 149, 150.

The court properly sustained the objection made by the district attorney to the testimony offered by the appellant in regard to the man upon whom the offense charged was alleged to have been committed, having, or making proposals to have, carnal intercourse with his wife on the night before the shooting occurred and previous to that night. Assault with intent to kill and murder, for which the appellant was being tried, does not admit of broader grounds of defense or wider range of testimony than the kindred crime of murder. If the appellant had been on trial for the latter offense, the evidence of illicit intercourse or attempted criminal intimacy with his wife could not have been/properly admitted in the state of case exhibited by the record. If he had caught the offender in the act of adultery with his wife and had slain him on the spot, the crime would have been extenuated to manslaughter— such provocation in legal contemplation being sufficient to produce that brevis furor which for the moment unsettles reason. But if the adulterer had not been slain on the spot, but afterward, and when sufficient time had elapsed for passion to cool, the killing, instead of being manslaughter, would have been murder, f 4 Bla. Com. 192; Whart. on Homicide, § 536; State v. Samuel, 3 Jones (Law) 74; State v. Neville, 6 Jones (Law) 432.

In The State v. Neville, supra, Judge Ruffin, with his usual clearness and force, said that the law as above stated “ is found in the most ancient archives of the common law, and has been brought down to us in the same plain and precise terms by the *411 ablest judges and the most eminent writers on the common law, and a court at this day has no more authority to interpolate new qualifications or exceptions into it than to make a statute. But the rule of the common law on this head stands not alone upon its own authority. Homicide is extenuated to manslaughter, not by the fact that it was perpetrated in a fury of passion, but by such fury being excited by a present provocation. But when a husband only hears of the adultery of his wife, no matter how well authenticated the information may be or how much credence he may give to the informer, and kills the wife or her paramour, he .does it, not .upon present provocation, but for a past wrong— a grievous one, indeed, but it is evident he kills for revenge. Let it be considered how it would be if the law were otherwise. How remote or recent must the offense be ? — how long or how far. may theshusband pursue the offender? If it happen that he be the deluded victim of an lago, and, after all, that he has a chaste wife, how is it to be then ? These inquiries suggest the impossibility of acting on any rule but that of the common law without danger of imbruing men’s hands in innocent blood, and the certainty of encouraging proud, heady men to slay others for vengeance instead of bringing them to trial and punishment by the law.”

Exception was taken to the action of the court below in giving the instructions asked for the State, but no error is assigned here on that point, and under'the rules of the court it will not be considered. As the judgment must be reversed for reasons above stated, it is not necessary to notice other causes of error assigned.

Reversed.