
    The United States vs. Richard J. Lee.
    Decided March 15, 1886.
    The Chief Justice and Justices Cox and Merrick sitting.
    Criminal Docket. No. 16,126.
    1. A prayer not founded upon any evidence in the case should be refused.
    2. The barbarous manner in which a homicide was committed does not of itself furnish any basis for the defence of insanity.
    8, An instruction to the jury which rests upon the idea that there is a grade of insanity not sufficient to acquit a party of manslaughter, and yet sufficient to acquit him of murder, should be refused; the court does not recognize such a distinction in the forms of insanity.
    4. On a motion for a new trial it is no ground of objection to a person as a juror that the law exempts him from jury service; he is not disqualified thereby, and, it being a personal privilege, he may waive it.
    STATEMENT OE THE CASE.
    Indictment for murder; conviction; appeal, and judgment affirmed.
    The facts of this case, as gathered from the bill of exceptions, are as follows:
    The defendant’s wife, Mary Lee, with her two children, were living at the house of a married sister, in the city of Washington. The defendant and his wife had lived apart for three months prior to the day of the killing. The cause of the separation being cruel and inhuman treatment of his wife by the defendant.
    At about eight o’clock in the evening (the day of the killing) the defendant visited his wife, remaining with her about half an hour. The conversation was not unfriendly until the defendant, in reply to a remark made by his wife, called her a liar. Thereupon he' was requested by his sister-inr law to go away. He immediately did so, first apologizing for his offensive remark to his wife. Several persons who were in the same room at the time, or in the adjoining room, testified that at this time the defendant acted naturally and did not seem to be under the influence of liquor.
    The immediate circumstances attending and following the homicide in question were as follows:
    About half, past eight o’clock on the same evening the defendant endeavored to borrow a pistol from a friend of his. He did not succeed in getting a pistol at that time. About half past nine o’clock he went again to the house where his wife was and endeavored to open the door, which had been locked to keep him out. The door not being opened upon his demand, he forced it open, entered the house, and at once began an indiscriminate attack upon the inmates of the house by shooting at them with a revolver. His wife fled from the house. He ran out after her. She screamed as she ran and begged him not to kill her. He replied: “ Gfod damn you, I will kill you.” Having chased her in this way several hundred feet he fired one shot at her. She still ran on and he followed and finally overtook her within the length of an ordinary city block from the house where she lived. He then struck her twice on the head with the revolver, inflicting severe wounds, and finally put his revolver to her body and fired another shot. He left her at once and went to a drug store in the vicinity and asked if he could purchase some cartridges. Eeceiving a negative answer he went on-Meeting an acquaintance he told him he had killed his wife and her sister, and that if he could have gotten some more cartridges he would have gone back and killed “the whole damned kit of them.” To another person a few moments later he said he had killed his wife and was going to be hanged for it. About eleven o’clock the same night the defendant was arrested by several policemen. On the way to the station house he was informed that his wife was dead; whereupon he said he had been assaulted with an axe by his wife’s sister.
    All the witnesses who testified to seeing the defendant after the shooting said that he seemed to be not drunk, but “as though he had been drinking.”
    Mary Lee died about half an hour after she was shot by the defendant.
    In defence no testimony was offered as to the actual killing, or as to what occurred when the defendant made his first visit to his wife on the evening in question. But several witnesses were examined on behalf of the defendant, whose testimony, it was claimed by his counsel, tended to prove that at the time of the killing the defendant was wholly or partially insane.
    This testimony tended to show that for several weeks prior to the day of the homicide, and on that day, the defendant had been distressed about his separation from his wife and his inability to get her to return to live with him, and had threatened to kill himself; that he loved his wife; and that throughout the day of the killing up to six o’clock in the evening he had not been in his usual state of mind. One of these witnesses said he acted “ very funny,” and that it seemed to her “ like he was crazy.” Another witness said that on that day the defendant acted like a maniac. Two others testified that on that day the defendant spoke to another woman under the impression apparently that she was his wife, and said to her, “ Mamie, come back and live with me.”
    Several of the defendant’s witnesses also testified that for several weeks immediately prior to the homicide the defendant had been drinking intoxicating liquor frequently, although he did not seem to be drunk.
    No witness testified that in his or her opinion the defendant was insane, except as above stated, and none said that in his or her opinion the. defendant was unable to distinguish right from wrong, or to refrain from killing his wife, or to know that to kill her was against the law. No question was asked any of the witnesses on those points.
    There the defence rested.
    In rebuttal the Government offered to the jury evidence tending to prove that the defendant had never been of unsound mind.
    This was all the evidence in the case.
    Thereupon counsel for the defendant requested the'court to instruct the jury as follows:
    “If the jury are not satisfied from the evidence that the defendant, at the time he committed the act, was so mentally unsound as to render him incapable of judging between right and wrong, yet if the jury find from the evidence that there was such a degree of mental unsoundness existing at the time of the homicide as to render the defendant incapable of premeditation and of forming such an intent as the jury .believe the circumstances of this case would reasonably impute to a man of sound mind, they may consider such degree of mental unsoundness in determining the question whether the act was murder or manslaughter.”
    But the court refused to give such instruction, to which refusal the defendant's counsel excepted.
    No exception was taken to the charge of the court to the jury.
    Yerdict, guilty as indicted.
    A motion for a new trial was then made on the principal ground that one of the jurors who sat in the case was disqualified under the provisions of section 875 of the Revised Statutes of the District of Columbia, he being at the time in the employ of the United States and the District of Columbia as a watchman in the engineer department, District of Columbia, appointed by the Commissioners of the District of Columbia, and in receipt of an annual salary of $480, paid out of the Treasury of the United States, all of which was discovered after the trial, and could not have been ascertained by reasonable diligence before the trial.
    
      By section 815, Rev. Stat. D. C., it is provided that “All salaried officers of the Government of the United States * * * shall he exempt from jury duty, and their names shall not he placed on the jury-lists.”
    The motion for a new trial being overruled, the defendant went to the General Term on appeal and on the exception taken at the trial.
    James W. Walker and Thomas 0. Taylor for defendant:
    “A man may have capacity to be responsible for manslaughter, but not to be responsible for murder.” Wharton’s Med. Jurisp., vol. 1 sec. 151.
    “All peculiar traits may he put in evidence to lower the grade of the offence, though they do not amount to insanity.” Whart. Med. Jurisp., sec. 200.
    “Partial insanity may be evidence to disprove the presence of the kind of maliqe required by the law to constitute the particular crime of which -the prisoner is accused.” Stev. Cr. Law (1863), sec. 92.
    A. S. Worthington for the United.States:
    The only question raised by the bill of exceptions in this case is substantially whether, upon evidence tending to show mental unsoundness, a jury ma}r reduce the grade of a homicide to manslaughter if they find such evidence insufficient to prove insanity, or to disprove that the person accused knew right from wrong.
    It will be observed that there was no evidence in the case that tended to prove insanity in the legal sense.
    In jurisdictions where murder is divided into two degrees — murder in the first degree requiring deliberation and premeditation; in other words, actual malice — it has been frequently held that evidence of mental excitement resulting from drunkenness and, perhaps, also of other abnormal conditions of the mind not amounting to insanity, may reduce an unprovoked homicide to murder in the second degree; but it has always been held that such evidence cannot of itself reduce the crime to manslaughter. On this point see Jones vs. Com., 75 Pa. St., 403; McIntyre vs. People, 38 Ill., 520; Rafferty vs. People, 66 Ill., 118; People vs. Rogers, 18 N. Y., 27; Com. vs. Hawkins, 3 Gray, 463; People vs. Balencia, 21 Cal., 544; Pirtle vs. State, 9 Humph., 663; Haile vs. State, 11 Humph., 155; Hanvey vs. State, 68 Ga., 614; Tidwell vs. State, 70 Ala., 33; Willis vs. Com., 32 Grat., 928.
    The record is somewhat confusing as to the question sought to be brought here by appeal from the refusal of the court below to grant a new trial; but it may be conceded, for the sake of the argument, that one of the jurors who convicted the defendant was also employed as set out in the motion.
    But section 875, while it exempts persons from service, does not disqualify them. Section 872 specifies what persons shall be incompetent to act as jurors, namely, those who are not citizens of the United States; those who are not residents of the District; all persons under 21 and over 65 years of age; and those who have been convicted of any crime involving moral turpitude.
    Chase was in the employ of the District of Columbia, not of the United States. The very section in question, after excusing salaried officers of the United States, goes on to excuse commissioners of police and persons connected with the police or fire department.
    “Officers of the Government of the United States” are those appointed by the President or the head of one of the Departments. U. S. vs. Germaine, 99 U. S., 508.
    The motion for new trial was addressed to the discretion of the court; it should have been supported by the affidavit of the defendant himself that he had no knowledge of the alleged disqualifying fact till after verdict; and a motion for a new trial on the ground of newly-discovered evidence of the incompetency of a juror will not be granted when the court that hears the evidence is satisfied on the whole that justice has been done. Thompson & Merriam on Juries, sec. 302.
   Mr. Justice Merrick

delivered the opinion of the court.

This was an appeal'from the Criminal Court where there was an indictment and conviction of murder, the defendant exexcepted for error in the refusal by the court of an instruction and also made a motion for a new trial upon the ground that one of the jurors was incompetent. The instruction which he prayed, and which was refused, is in these words:

“If the jury are not satisfied from the evidence that the defendant, at the time he committed the act, was so mentally unsound as to render him incapable of judging between right and wrong; yet if the jury find from the evidence that there was such a degree of mental unsoundness existing at the time of the homicide as to render the defendant incapable of premeditation and of forming such an intent as the jury believe the circumstances of this case would reasonably impute.to a man of sound mind, they may consider such degree of mental unsoundness in determining the question whether the act was murder or manslaughter.”

The first criticism to he made upon the application for the reversal of the judgment of the court below in refusing this prayer is, that there was no evidence whatsoever upon which to found the prayer. There was no suggestion of any insanity on the part of the defendant, and no evidence tending to prove in any manner that he was insane; and the only ground upon which it was argued here that a prayer of that sort should be granted was because the offence was a very barbarous one in itself.

The authorities are explicit that the barbarous manner in which a homicide is committed does not in itself furnish any basis for the defence of insanity. But above and beyond that the prayer is inconsistent with itself — is incongruous and radically vicious. It rests upon the idea that there is a grade of insanity not sufficient to acquit the party of the crime of manslaughter and yet sufficient to acquit him of the crime of murder.

The law does not recognize any such distinction as that in the forms of insanity. The rule of law is very plain that in order that the plea of insanity shall prevail, there must have been that mental condition of the party which disabled him from distinguishing between right and wrong in respect of the act committed.

Now if the prisoner was so far capable of distinguishing between right and wrong as to be guilty of the crime of manslaughter, he surely was capable of distinguishing between right and wrong in respect of the crime of murder of the identical party. There can be no recognition of the doctrine that a man is incapable of distinguishing between right and wrong so as to determine that the case is not a case of murder, and yet- capable of distinguishing between right and wrong so as to be guilty of manslaughter. There is no such doctrine, and nothing in the books that favors any such idea. The prayer therefore is unsound in all respects, and even if it had been sound, not being supported by evidence, the court below was entirely justified in rejecting it.

There is another objection made upon the motion for a new trial to the effect that one of the jurors was incompetent to sit because he had been the holder of a subordinate office under the District of Columbia. The jury law exempts from service on juries parties who are engaged in public office, whether on the part of the Government or on the part of the District of Columbia. It exempts other classes of persons also from jury duty, but the perons exempted are not disqualified as jurors. It is simply the privilege of the party to become exempt from jury service on account of. other engagements. But he has the capacity —the faculty to be a juror. It is his own personal privilege, and he alone is the party who shall take advantage of it. If he pleases to waive that privilege he is still a competent juror, and he has all the functions and powers which the law imputes to a man as necessary to constitute one of the twelve triers of an accused. This objection, therefore, affords no ground upon which a motion for a new trial can be sustained.

This subject has frequently been before the courts and the doctrine is very thoroughly and conclusively established It is laid down in Bishop on Criminal Procedure in the third edition at section 886. But the most recent case in which the subject has been exhaustively considered and all the authorities of all the States brought together, is to be found in the case of Green against The State, reported in 69 Md., 128. There the Court oí Appeals reviews all the decisions both in England and in this country upon the subject, and it needs only to refer to that case for the sufficient reasonings upon which they maintain and confirm the justice of the rule of law that where a person is exempted from service on a jury he is not thereby disqualified. It is his personal privilege only, and unless he please to take advantage of it, it cannot be taken advantage of on a motion for a new trial.

Those were the only two objections, presented why the judgment of the court below should riot be affirmed by this court, and finding no sufficient cause for reversing the judgment upon either of these reasons, it will be affirmed.  