
    Case 43 — INDICTMENT
    December 9.
    Brown v. Commonwealth.
    APPEAL FROM GALLATIN CRIMINAL COURT.
    1. Objection first made in motion and grounds for new trial, as to alleged errors committed during the progress of the trial, can not ■ he considered by the Court of Appeals.
    2. Instructions as to the sanity of the accused, giving him the full benefit of the law applicable to the defense of insanity, are copied and discussed in the opinion herein, affirming the judgment of conviction on defendant’s plea of insanity.
    3. Opinions of witnesses derived from observation are admissible in evidence when, from the nature of the subject under investigation, no better evidence can be obtained. (Hardy v. Morrill, 56 N. H. 232.)
    4. Opinions of non-professional witnesses as to the sanity of the ACCUSED may be admitted as evidence by the court.
    
      But the court must be satisfied, before admitting such opinions, that the witness has had an opportunity, by association and observation, to form an opinion as to the sanity of the person in reference to whom he is to speak or give his opinion.
    5. An expert should not be allowed to express his professional opinion as to the sanity of the accused when there is no hypothetical case, or agreed facts submitted to him; or from the evidence of other witnesses when he did not hear all the evidence of the other witnesses.
    6. What response the witness was expected to make must be shown in the record before the Court of Appeals can decide whether the court below erred or not in refusing to allow the question to be answered. (Tipper v. Commonwealth, 1 Met. 6; Bowler v. Lane, 3 Met. 311; Chrystal v. Commonwealth, 9 Bush, 669; Nichols v. Commonwealth, 11 Bush, 575.)
    7. A DECISION OF THE COURT OF APPEALS IS AUTHORITY, and to be regarded as law only in so far as it passes upon questions actually presented, and necessarily decided, in the particular case.
    8. The Court of Appeals has no jurisdiction to consider original affidavits not a part of the record made in the lower court; or to direct an inquiry as to whether the appellant has not become insane since the rendition of the verdict and sentence of the lower court against him.
    
      J. J. LANDRAM bob, appellant.
    1. The court permitted the jury to view the place where the homicide occurred, also, the residence of the accused, and how he escaped through the back part of it, etc., without placing the jury under the direction of some person appointed by the court, and without the presence of the accused, in violation of section 236 of the Criminal Code, and of section 12, article 13 of the constitution, which secures to the prisoner the right “ to meet the witnesses face to face,” and because the jury thus received evidence out of court the accused was entitled to a new trial. (Crim. Code, sec. 271, subsec. 2.)
    The accused had a right, with his counsel, to be personally present with the jury when they viewed the scene of the homicide. (3 Wharton’s Crim. Law, sec. 3197.)
    “ If the indictment be for a felony, the defendant must be present, and shall remain in actual custody during the trial.” (Crim. Code, sec. 183.)
    •2. The opinions of the non-professional witnesses as to the sanity or insanity of the accused were not competent, because they did not detail the facts on which they based their opinions. (Hunt’s heirs v. Hunt, 3 B. Mon. 575; Jones’s adm’r v. Perkins, 5 B. Mon. 223; 1 Pick. 192; 3 Serg. & R. 267; Townsend v. Townsend, 7 Gill, 10; Dorsey v. Warfield, 7 Md. 67; Commonwealth v. Wilson, 1 Gray, 339; Poole v. Richardson, 3 Mass. 330; Clark v. The State, 12 Ohio, 483; 1 Greenleaf, 440; Doe v. Regan, 5 Blackford, 217.)
    3. The first instruction is erroneous because it does not fix the time at which deceased died. It left the time of his death blank. In order to make the killing murder the deceased must have died within a year and a day after receiving the injury. (2 Bishop, sec. 655; Wharton, sec. 1078.)
    4. The fifth instruction is erroneous, because it does not direct the jury to consider the condition of the mind of the accused at the time of the killing, and because it requires the jury to be satisfied that the accused was insane. (Smith v. Commonwealth, 1 Duv.; 8 Bush, 463; 4 Met. 229.) “ Satisfied ” requires more than belief.
    5. Insanity is an excuse for crime when committed under its influence and by its promptings. (Wharton’s Crim. Law, secs. 21, 22, 23, 24, 25, 30; Wharton & Stills’s Med. Juris., sec. 260; Bennett & Head’s Leading Cases, 101.)
    6. One of the jury was allowed to separate from the others and go to a barber’s shop alone and not in the charge of an officer. (Commonwealth v. Shields, 2 Bush, 84; Wharton’s Crim. Law, sec. 3115; Commonwealth v. McCall, 1 Va. Cases, 271; 1 Robinson, 756; Crim. Code, sec. 244.)
    
      7. An indictment for murder, in which it does not appear that the death happened within a year and a day after the wound was given, is fatally defective. (2 Wharton, sec. 1073; 2 Bishop on Grim. Law, sec. 533.)
    THOMAS E. MOSS, attorney-general, nor appellee.
    Brief not in record.
   JUDGE HINES

delivered the opinion op the court.

Appellant, charged with willful murder, was tried, convicted of voluntary manslaughter, and sentenced to the penitentiary for sixteen years, and from that judgment he appeals.

The substance of the proof is, that appellant tendered money and demanded a drink at the bar of one Jacob, and that Jacob and his bar-tender, Snyder, both refused to let appellant have any liquor, Snyder assigning as a reason that the father of appellant had so requested. Some harsh language passed between the parties, when appellant drew a pistol and snapped it at Jacob, and on its failing to fire, appellant, with a declaration to the effect that he would get a pistol that would kill, went a short distance to his dwelling and in a few minutes returned with another pistol, which he presented and snapped at Jacob. At this point Snyder called to an officer to arrest appellant, and without further provocation he turned and shot Snyder, from the effects of which he died within a few days. The principal defense was insanity, the evidence to support which will be referred to in another part of this opinion.

Much of the argument of counsel for appellant was directed to the alleged errors of the court below, in permitting the jury to view the place of killing, without the presence of the prisoner and without having the place pointed out to the jury by the court, or by any one designated by the court; and in permitting the jury to separate during the trial, to receive evidence out of court and in the absence of appellant. These points, as well as several others relied upon in the argument, can not be considered by this court, because no objection was made to the action of the court until the motion for a new trial was made. (Terrell v. Commonwealth, 13 Bush, 246.)

In Kennedy v. Commonwealth, ante page 340; Frazier v. Commonwealth, MS. opinion, November 21, 1878; and in several other cases decided at the present term, we have held that an objection first made in motion and grounds for new trial can not be considered by this court. Of the fifteen grounds relied upon on the motion for new trial, we can examine only the action of the court in the admission and rejection of evidence, and the giving and refusing of instructions.

The following instruction given at the instance of the Commonwealth is complained of, to wit:

“The court instructs the jury that the law presumes every man to be sane until the contrary is shown by the evidence, and before the prisoner can be excused for killing the deceased on the plea of insanity the jury must be satisfied from the evidence that the accused was laboring under such a • defect of reason as not to know the nature and quality of murder, or if he did know it, that he did not know to commit murder was wrong. That the true test of responsibility is, whether the accused had sufficient reason to know right from wrong, and whether or not he had sufficient will-power of control to govern his actions.”

Counsel earnestly and ably argues that the word “satisfied,” used in the instruction, was misleading and prejudicial to appellant, because it required the jury to disregard the plea of insanity, unless the evidence was such as to free their minds from doubt as to whether it was of such a character as under the instructions would authorize an acquittal; that they were told by that expression that the existence of a reasonable doubt as to the sanity or insanity of the appellant would not justify an acquittal upon the ground of insanity. That instruction standing alone is probably subject to that objection, but when taken in connection with the other instructions it does not appear that the jury could have been misled by it.

By the second instruction given at the instance of the counsel for appellant the jury is told that it is their duty to consider every fact or circumstance admitted in evidence, and that if, upon the whole case, they shall entertain a reasonable doubt as to whether any fact or circumstance necessary or essential to the conclusion of the guilt of the accused has been proved, they should give the accused the benefit of that doubt.

The third instruction given at the instance of appellant’s counsel is as follows:

“The court instructs the jury that if, upon all the evidence before them, they shall entertain a reasonable doubt as to whether the accused, at the time and place he shot and killed Snyder, was of sane mind, they should give him the benefit of that doubt, and acquit him.” This instruction is more favorable to appellant than is authorized by the law.

If the instructions given were numerous, prolix, or involved it might be said, with the appearance of plausibility, that the objection indicated to the fifth instruction was such as would authorize the court to infer that the jury might have been misled by it. But such is not the case. They are drawn with much more than the usual care bestowed upon instructions in criminal cases, and present the law in as brief and direct a manner as could well be done, giving to the accused the full benefit of the law applicable to the defense of insanity, whether it be intellectual or moral insanity. (Graham v. Commonwealth, 16 B. Mon. 587.)

While the evidence certainly strongly tends to show that the accused was afflicted with a homicidal mania, and that it is hereditary, the question of the sufficiency and weight of evidence to establish the defense was a question exclusively for the jury, a matter not to be inquired into by this court.

Some seventy witnesses were examined in the case, and the larger number of them, experts and non-experts, were permitted to express their opinions as to the sanity of the appellant, and of the testimony of the non-experts, excepted to by counsel for appellant, is the following:

H. P. Clau said that he had known the appellant for eighteen years; lived within a half a mile of him; sometimes saw him as often as two or three times a week; sold him goods about eight years before the killing; had since then loaned him small amounts of money, and thought him sane; noticed some peculiarity in him, but thought him drunk; never saw him drink; never associated with him, and am twice as old as he is.

D. P. Guin said: Have known the accused since a boy, but have not been with him much; had but little to do with him. From observation of his conduct and acts, I had no reason to believe him insane, and never heard any thing of it. My attention was not called to it. He had many peculiarities.

J. J. Brown said: Am not related to the accused; have known him since 1849; had business with him and frequent chats. From habits, conduct, and chats I never thought him insane; have seen peculiarities in members of his family, but never had any question as to his sanity. I am not an expert nor a doctor. My attention was never called to the accused’s insanity.

R. H. Monow said: Have known the accused all his life, and have always thought him sane. I am no doctor, nor was my attention ever called to his insanity.

Rod Perry said: Have known the accused for twenty years; not intimate with him; never heard his sanity called in question. He was different from the other members of his family in disposition. I never studied insanity.

Judia Long: I have known the accused and his family for thirty-five years. From his manner, habits, and my personal knowledge of him I think him as sane as any one. When under the influence of liquor, or when I thought him to be, he would laugh, sing, and swear.

Dr. H. J. Abbett: Have known the accused ten or fifteen years; never made it my business to observe his habits; conversed with him a few moments before the killing, and thought him sane; never heard his sanity questioned; have had no experience in treating insanity.

Ben. F. Griffin: Have known the accused since he was a boy; saw him but seldom, and never heard his sanity questioned.

Many other witnesses were examined who testified substantially as the above, but we deem it unnecessary to give their statements, as these are sufficient to dispose of the objections made by counsel. The question is, When, if at all, will non-experts be permitted to state in evidence an opinion as to sanity ?

This court, in Hunt’s heirs v. Hunt, 3 B. Mon. 577, expressed the opinion that such evidence was incompetent unless the witness stated the facts upon which the opinion was based, but did not undertake to say what facts would be necessary to render the expression of an opinion competent.

The opinion in Hardy v. Morrill, 56 N. H. 232, decided in 1875, is one of the most exhaustive and satisfactory reviews of the question that we have met.- The opinion was delivered by Chief Justice Foster. It is there said, page 241:

“ But without reference to any recognized rule or principle, all concede the admissibility of the opinions of non-professional men upon a great variety of unscientific questions arising every day, and in every judicial inquiry. These are questions of identity, handwriting, quantity, value, length, measure, time, distance, velocity, form, size, age, strength, heat, cold, sickness, and health; questions also concerning various mental and moral caprices of humanity, such as disposition and temper, anger, fear, excitement, intoxication, veracity, general character, and particular phases of .character, and other conditions and things, both moral and physical, too numerous to mention.”
“All evidence is opinion merely, unless you choose to call it fact and knowledge, as discovered by and manifested to the observation of the witness.”

It is there said that no general rule for the admission or rejection of such evidence can be safely stated, but that the nearest is:

Opinions of witnesses derived from, observation are admissible in evidence, when, from the nature of the subject under investigation, no better evidence can be obtained. No harm can result from such a rule properly applied. It opens the door for the reception of important truths, which would otherwise be excluded, while at the same time the test of cross-examination, disclosing the witness’s means of knowledge, and his intelligence, judgment, and honesty, restrain the force of the evidence within reasonable limits, by enabling the jury to form a due estimate of its weight and value.”

Exactly what is meant by the expression in some cases, when such evidence has been admitted, that “ the witness must detail the facts upon which the opinion is based,” we do not find explained. If the admissibility of the opinion as evidence must depend upon the facts from which it is formed, it is manifest that there is a question for the court antecedent to its introduction, and that to promulgate a general rule, as to the amount and quality of the evidence that should satisfy the court in every case, would be impossible. The court must be satisfied that the witness has had an opportunity, by association and observation, to form an opinion as to the sanity of the person in reference to whom he is to speak; but, as to the extent and character of the evidence, no better rule can be established than to leave it within the discretion of the court, as in the case of opinions given in evidence as to handwrite. It must vary with the circumstances of each case, and by these circumstances the jury must determine for themselves the weight to which the opinion may be entitled.

It is not intended that the admissibility of the evidence shall be made to depend upon the ability of the witness to state specific facts, from which the jury may, independent of the opinion of the witness, draw a conclusion of sanity or insanity, for it is the competency of the opinion of the witness that is the subject of inquiry. The ability of the witness to detail certain facts which are in themselves substantive evidence of the condition of the mind, may add very greatly to the weight of the opinion given in evidence, but they will not of necessity affect the question of competency. One of the main reasons for permitting such evidence is that the facts and circumstances which go to form the opinion in the mind of the witness can not be reproduced and made palpable in the concrete to the jury. Common observation teaches us that mind and character manifest themselves through subtle mediums of communication that can not be made tangible in all cases to the understandings of others, even by the most studied and powerful use of language. (Wharton on Evidence, sec. 451, and authorities there cited.)

An eye may menace, it may plead, it may languish with love, it may sparkle with mirth, it may manifest intellectual power, it may show idiocy or insanity, and while these several manifestations may be as patent to the mind of the observer as any material substance could be, and he may be as conscious of the condition of the mind, character, or emotion indicated by them as he is of his own existence, yet the probabilities are that the most skillful word - painter would utterly fail in an attempt to make these evidences substantive and tangible to another. The same may be said of the impression one gathers from the tones of the human voice, from the touch of a hand, the lines and contour of a face. These, and a great number of other illustrations that might be given, show that in all such matters the admission, in evidence, of opinions is absolutely essential to a proper administration of justice and the development of truth. It is competent because it is the best evidence of which the subject is susceptible.

Those who have had any thing like an extensive practice of law know how unreliable and worthless is the evidence of the average expert. Often the opinion is honestly formed and expressed to suit some pet theory that has no foundation in fact or experience, and sometimes it occurs that an over-weening desire to place a rival practitioner in an unfavorable light before the jury and the local public, leads the expert to the expression of an opinion that is not the result of observation and experience, and does not correspond with the deduction that should be made from the facts. Frequently such persons are called from a distance to express an opinion after a momentary examination, or an opinion based upon a hypothetical case imperfectly stated. It is not reasonable to suppose that such an opinion of an expert would be entitled to as much weight as that of an intelligent non-professional person who had for many years been an intimate associate of the person in reference to whose mind he was called to speak; or, to say the least, there appears no reason why the opinion of such an expert should go to the jury and that of the non-professional be excluded. The evidence of the one or the other will be entitled to consideration in proportion to his intelligence and opportunities for forming an opinion, and the juries may be safely intrusted with the duty of comparing and weighing them.

Wherefore the judgment is affirmed.

To THE PETITION OF APPELLANT’S COUNSEL FOK A REHEARING

JUDGE HINES

DELIVERED THE FOLLOWING RESPONSE OF THE COURT:

It is earnestly insisted, in the petition for rehearing, that the case of Shirleys v. Taylor’s heirs, 5 B. Mon. 103, is directly in conflict with the views expressed in the opinion herein. In this we think counsel is in error. There the attention of the court was directed rather to the weight to be given to the opinions of the witnesses, as to the sanity of Taylor, than to the competency of the statements as evidence. The court was passing upon the question whether the evidence was sufficient to justify the conclusion that Taylor was insane at the date of the judgment or of the execution of the replevin-bond. The only evidence offered was an inquest of lunacy found subsequent to the execution of the bond and the statements of these witnesses. As to the inquisition the court say, “It furnishes no evidence that he was a lunatic, or of unsound mind, when the judgment was rendered or at the taking of the replevin-bond.” The first witness whose statement is considered by the court says that Taylor was of unsound mind at the time of the rendition of the judgment and at the time of the execution of the replevin - bpnd, but does not state that he knew Taylor or that he had ever had any opportunity, from association or otherwise, to form an opinion. Of this witness the court say, “We think his testimony entitled to very little, if any, consideration” The second witness says he knew Taylor intimately, from 1808 to 1819, and that he resigned his office as receiver of public moneys in consequence of mental derangement. The evidence of the third witness is that Taylor resigned the office of receiver, etc., in consequence of unsoundness of mind or incompetency to attend to the business of the office, and that he continued to grow worse and less able to attend to business until an inquest was held and he was found to be of unsound mind.

It will be seen that only one of the three witnesses stated that he was acquainted with Taylor or had any opportunity to observe whether he was of sound mind, and that witness did not express an opinion as to his sanity. He simply stated that Taylor resigned, etc., on account of unsoundness of mind.” Of this evidence the court say, No fact is stated by either of these witnesses in regard to the appearance, conduct, or acts of the deceased indicative of derangement. We are left wholly to conjecture as to thd manner in which his mind was affected, whether merely enfeebled by age or disease, or whether the affection amounted to a positive derangement, . . .We think it may be fairly inferred that his intellect was enfeebled, and the loss or decay of it progressive. Such may have been the fact, and still he may have been competent for the transaction of ordinary business which reqtíired but little mental effort. . . . It seems to us therefore that the complainants have not satisfactorily established that their ancestor was a lunatic at the date of the judgment on the replevin-bond.”

If it had been the opinion of the court that this evidence was not competent, it would have been said, as was said of the inquisition, that there was no evidence tending to show insanity. It can scarcely be concluded that the court, by passing upon the evidence and holding it insufficient to establish the fact of lunacy, thereby intended to hold that the evidence was incompetent and should not be considered at all. The fact is, the matter decided in the opinion on the case at bar was not presented or considered in that case, and it can not therefore be held authority upon this point. If it has any bearing whatever it is in favor of the position assumed herein. A decision is authority and to be regarded as law only in so far as it passes upon the questions actually presented and necessarily decided in the particular case;

It is further insisted that the court below erred in refusing to allow the witness, Dr. Allen, to give his professional opinion as to the sanity of appellant. The competency of this evidence was not considered in the opinion,- first, because the question was not suggested in the elaborately written brief of appellant’s counsel, nor in the oral argument by the same counsel; and secondly, because counsel did not preserve the exception in such form that this court could consider it. The statement of the witness is that he had lived in Warsaw for twenty years, excepting about three^and a half years; that he had known appellant during that time, and never heard his sanity questioned; that he had practiced medicine eight years, and had no opinion; that appellant was very peculiar and eccentric ; that he had heard most of the evidence in the case— the important part of it. He was then asked, “ What is your professional opinion as to the sanity of Brown at the time he shot Snyder?” To this question an exception was taken and sustained, and this is the matter complained of.

It is manifest that the court should not have permitted the witness to express his “.professional opinion” when there was no hypothetical case or agreed state of facts submitted to him. He did not pretend even to have heard all the evidence in the case, and if he had he could not be allowed to give an opinion based upon that evidence alone. But if it be conceded, as we think it should be, that the witness had sufficient opportunity from acquaintance and association to render competent an opinion as to the sanity of appellant, yet we can not adjudge that the court erred in refusing to allow the question to be answered. It is an elementary and familiar principle that it must be made known to the court what response the witness is expected to make, or that it is hoped that he will make, before this court can say whether the court below erred in refusing to allow a question to be answered. (Tipper v. Commonwealth, 1 Met.; Bowler v. Lane, 3 Met.; Chrystal v. Commonwealth, 9 Bush; and Nichols v. Commonwealth, 11 Bush.)

Counsel further insists that, on original affidavits, not a part of the record, we shall direct an inquiry as to whether appellant has not become insane since the rendition of the verdict and the sentence of the court. It is only necessary to say that the only authority possessed by this court in such cases is to pass upon the questions of law, arising on the trial, preserved and presented by bill of exceptions. Whatever may be said as to where the power exists, if at all, to grant relief in such cases, it is manifestly not in this court.

The other suggestions made in the petition for rehearing are sufficiently answered in the opinion.

The petition for rehearing is overruled.  