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REHEARINGS DENIED.

(Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.]

Krebs Hop Co. v. Livesley & Co. (Or.) 104 P. 3.
O'Neill v. Edson Keith & Co. (Or.) 104 P. 725.
State v. Emmons (Or.) 104 P. 882.
State v. McDonald (Or.) 104 P, 967.

See End of Index for Tables of Pacific Cases in State Reports.

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105 P.

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NESS.

of the defense was that he was insane. The STATE V. RUMBLE.

state maintained that he was merely in(Supreme Court of Kansas. Nov. 6, 1909.) ) toxicated. The most important assignments 1. CRIMINAL LAW (8 452*)-EVIDENCE-NON- of error relate to the exclusion of evidence EXPERTS—INSANITY-COMPETENCY.

bearing upon the question of his sanity, and Although the trial court has some discretion to the instructions given and refused rein determining whether a nonexpert witness has had sufficient opportunity of observation to ren- garding the effect of drunkenness. der admissible his opinion of the mental condi- Witnesses were produced in behalf of the tion of one whose sanity is in issue, it is error defendant who testified, in effect: That to refuse to allow him to state it, where it is they had known him for several years and shown to be based upon a fairly intimate acquaintance with the subject of the inquiry ex. had had opportunity to observe his usual tending over several years.

conduct; that they had noticed at different [Ed. Note.-For other cases, see Criminal times peculiar and eccentric actions on his Law, Čent. Dig. $ 1054; Dec. Dig. $ 452.*] part, which they described in detail. They 2. CRIMINAL LAW (8 456*)-EVIDENCE-Non-were then asked whether in their judgment EXPERT-INSANITY.

he was sane or insane. Objections were susIt is error to exclude such opinion of a witness upon the ground that a number of instances tained to all questions of this character. of peculiar and unusual conduct on the part of Ordinarily the rejection of such evidence is the subject of the inquiry, to which he has tes- reversible error. State v. Beuerman, 59 tified do not in themselves justify an inference Kan. 586, 53 Pac. 874. The state contends, of insanity.

[Ed. Note.--For other cases, see Criminal however, that the testimony here excluded Law, Cent. Dig. 8 1045; Dec. Dig. $ 456.*] was objectionable or immaterial for some 3. HOMICIDE (8 81*) - DEFENSES - DRUNKEN

or all of these reasons. (1) It did not specif

ically refer to the condition of the defendDrunkenness may reduce a homicide from ant at the time of the homicide; (2) the murder to manslaughter, if it is so extreme as witnesses said that the defendant bore a to prevent the existence of an intention to kill.

[Ed. Note.-For_other cases, see Homicide, good reputation as a quiet and peaceable Cent. Dig. $ 107; Dec. Dig. $ 81.*]

citizen, and this was inconsistent with the 4. HOMICIDE (S$ 28, 81*)—DEFENSES-DRUNK theory of insanity; (3) the witnesses were

not shown to have had sufficient opportunity That drunkenness may have rendered one of observation to render their opinions of charged with a crime incapable of knowing the nature and quality of his act, or of distinguish any value; (4) the facts detailed by the ing between right and wrong, does not consti- witnesses had no tendency to justify a betute a defense.

lief that the defendant was insane. Of these [Ed. Note.-For other cases, see Homicide, propositions it may be said, in order: Cent. Dig. $$ 45, 46, 107; Dec. Dig. 88 28, 81.*) 1. The evidence rejected did not specifical(Syllabus by the Court.)

ly relate to the precise time of the homicide; Appeal from Court of Common Pleas, Wy- was obviously based on the theory that some

but this was not necessary, for the defense andotte County; William G. Holt, Judge. form of mental derangement had existed Charles Rumble was convicted of mur

for a considerable period. der, and he appeals. Reversed, and new

2. A good general reputation was not nectrial ordered.

essarily incompatible with unsounduess of D. J. Maher and Jacob S. Detwiler, for mind, manifested at intervals. appellant. Joseph Taggart, for the State. 3. One of the witnesses had known the de

fendant more than six years, and had lived MASON, J. Charles Rumble was convict- near him for over four years, not immedied of murder in the second degree, and ap- ately prior to the homicide, however. Anpeals. It was admitted that he shot and other had known him for nine years and had killed, without any provocation or apparent worked with him at different times, once cause, a man who, so far as the evidence for two months eight years before the trial, shows, was a total stranger. The theory and once for an unstated period within a

ENNESS.

*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

year. This court has said that “whether unusual conduct shall be stated, not necthere is a fair basis for an opinion must be essarily to render the witness competent, left largely to the trial court." Kempf v. but to aid the jury in placing a just value Koppa, 74 Kan. 153, 155, 85 Pac. 806, 807. upon his conclusions. “A statement of facts But clearly the acquaintance of each of detailed by the witness tends to affect the these two witnesses with the defendant weight to be given to his opinion, affording was sufficiently intimate for the formation the court or jury opportunity to judge of of a judgment as to his mental condition. his intimacy with the person about whom As was said in the same case: “The courts he is testifying, his facilities for observation, do not undertake to lay down a definite and the acuteness with which he has disrule as to how closely the witness must have cerned peculiarities which might escape the observed the person whose sanity is the sub- notice of others.” Zirkle v. Leonard, 61 Kan. ject of inquiry in order to be qualified as a 636, 638, 60 Pac. 318.

636, 638, 60 Pac. 318. In Commercial Travwitness, as even a casual observer may dis-elers v. Barnes, 75 Kan. 720, 90 Pac. 293, cover mental manifestations that would the rule is thus stated: “Nonexpert witmake his testimony valuable."

nesses shown to have had especial oppor4. The incidents detailed by the witness- tunities of observation are allowed to give es may not in themselves have justified a opinion evidence of the mental condition conclusion that the defendant was insane; of one under investigation in this respect, but that was not necessary in order to ren- having first stated the facts upon which der the evidence admissible. One of the such opinions are based, or without stating cogent reasons for allowing a witness to such facts when opportunity is given to give his opinion as to the sanity of the per- cross-examine in reference thereto.”

This son the condition of whose mind is under is in accordance with the weight of authoriinvestigation is that he cannot possibly place ty and the better reason. See 3 Wigmore before the jury every circumstance that has on Evidence, $$ 1933, 1935, 1938, 1922. influenced his judgment in the matter. As

A physician, who had examined the dewas said in Zirkle v. Leonard, 61 Kan. 636, fendant a few months after the shooting, 637, 638, 60 Pac. 318: "If all the facts on was asked to testify concerning his mental which the opinion is based could be placed condition, but was not permitted to do so. before the jury, the latter could judge of The ground of this ruling is not clear; but the sanity or insanity as well as the wit- in the brief of the state it is suggested that ness; but there are certain indicia of mental the question was too indefinite as to time. disorder which are indescribable. Peculiar It seemed to relate, however, to the time of conduct, acts, and deportment of the per- the examination, and on that theory was person may create a fixed and reliable judg- tinent. State v. Newman, 57 Kan. 705, 47 ment in the mind of an observer which Pac. 881, 16 A. & E. Encycl. of L. 614. The could not be conveyed in words to the jury. question of the defendant's guilt turned soleA person may appear to be sad, dejected, ly on whether he was insane. Inasmuch as sick, or well, yet such appearance could not he was not allowed to try to establish his be described satisfactorily, and hence a con- insanity by the testimony of nonexpert acclusion is permitted to be given."

quaintances-one of the well-recognized The court has never decided that a lay means of proving such a fact-it cannot be witness who has had opportunity to observe said that he was given a fair opportunity the conduct of a person whose sanity is to prove himself innocent. The trial court called in question may not give an opinion took the view that, to whatever extent the upon the matter without first stating in defendant may have been intoxicated, he detail the facts that have been observed, al- was guilty of murder in either the first or though this has sometimes been assumed in the second degree, or was innocent; that his a general statement of the rule. Baughman voluntary drunkenness might prevent his v. Baughman, 32 Kan. 538, 543, 4 Pac. 1003; | act from being first degree murder by renState v. Beuerman, 59 Kan. 586, 589, 53 Pac. dering him incapable of deliberation and pre874. A more accurate expression was formu- meditation, but could not upon a similar Lated in Howard v. Carter, 71 Kan. 85, 91, principle prevent it from being murder in 80 Pac. 61, 63, in these words: "It is well set the second degree. This was evidenced by tled in this state that a nonexpert witness an instruction reading as follows: "If you may be permitted to give his judgment as find that the defendant committed the act of to the sane or insane state of another's killing as charged in the information, and mind after having detailed to the jury the that at the time he did so he was in a state extent of his opportunities to deduce a cor- of intoxication, caused by his voluntary acrect opinion and judgment thereon." See, tion, he is guilty of murder in the first dealso, Grimshaw v. Kent, 67 Kan. 463, 73 gree, unless you further find that such inPac. 92. A belief that a person is of sound toxication was so extreme as to prevent mind could hardly be said to be founded his mind from the exercise of deliberation upon any number of specific acts. Where and premeditation, in which latter case he an opinion 'has been formed that a person would be guilty of murder in the second is insane, and testimony to that effect is degree."

* *

existence of a definite purpose impossible, / wrong.” This was too favorable to the demay be a defense to any crime of which a fendant. “It can make no difference, where specific design is an essential element. “To no specific intent is necessary, that the deregard the fact of intoxication as meriting fendant was so drunk as to have no capacity consideration in such a case is not to hold to distinguish between right and wrong." that drunkenness will excuse crime, but to 12 Cyc. 172. “Mental incapacity produced inquire whether the very crime which the by voluntary intoxication, existing only temlaw defines has been in point of fact commit- porarily at the time of the criminal offense, ted.” 17 A. & E. Encycl. of L. 407. If a | is no excuse therefor, or defense to a proseperson is too drunk to form an intent to cution therefor.

* The test of insankill, he cannot be guilty of any offense for ity as affecting criminal responsibility, that the commission of which such intent is nec- the accused must have labored under such essary. State v. White, 14 Kan. 538. At a defect of reason as not to know the nacommon law murder may be committed with- ture or quality of the act, or, if he did know out any actual design to take life (21 Cyc. it, that he did not know he was doing wrong, 712), and therefore drunkenness can be no does not apply to drunkenness.” 36 L. R. A. defense to that charge (12 Cyc. 174, note 466, note. “Temporary insanity immediate77). Under some statutes which divide mur- ly produced by intoxication does not destroy der into degrees, an involuntary homicide responsibility for crime, where the accused, may be murder in the second degree. 12 when sane and responsible, voluntarily made Cyc. 174, note 78. In Craft v. State, 3 Kan. himself drunk. To constitute insanity caus450, 482, it was inaccurately said that to ed by intoxication a defense to an indictment constitute murder at common law an inten- for murder, it must be a settled insanity, tion to take life must precede the killing, and not a mere temporary mental condition.” and that whatever act would have been 17 A. & E. Encycl. of L. 405. murder at common law is murder under the The county attorney submits that the Kansas statute, being classified as first or homicide could not constitute manslaughter, second degree according to whether or not because in any view of the evidence the it was done deliberately and with premedita- facts did not bring it within any of the stattion, but in State v. Young, 55 Kan, 349, utory definitions. No reason, however, is 355, 40 Pac. 659, it was held, following the apparent why an instruction might not propOhio decisions, that the use of the word erly have been given under section 12 of the "purposely” in defining second degree mur-crimes act (Gen. St. 1901, § 1997). State v. der implies the existence of an intention Spendlove, 47 Kan. 160, 28 Pac. 994.

The to cause death, and this is the interpretation objection made to the applicability of secelsewhere placed upon that language. 21 | tions 18 and 26 is that they involve the eleCyc. 712, note 50. It necessarily follows that ment of “heat of passion.” That term, howdrunkenness so extreme as to prevent the ever, has a wide range of meaning. Section forming of a purpose to kill might, under 27 includes any inexcusable and unjustifiour statute, reduce what would have been able killing of a human being not otherwise murder at the common law to manslaughter, classified by the statute that at common law and in a proper case instructions to that would have constituted manslaughter. effect should be given. See cases cited in It is not thought necessary to consider othsubdivision 5 of note in 36 L. R. A. 470, un-er assignments of error, as the questions to der subhead "Intent," and 12 Cyc. 172. It which they relate are unlikely to arise again. is to be borne in mind, however, that "the The judgment is reversed, and a new trial fact of intoxication, no matter how complete ordered. All the Justices concur. and overpowering, is not conclusive evidence of the absence of an intent to take life" (State v. White, 14 Kan. 538, syllabus), and,

YOUNG et al. v. GIBSON. as said in Zibold v. Reneer, 73 Kan. 312, 320, 85 Pac. 290, 293: "For a person to be too (Supreme Court of Kansas. June 5, 1909. On

Motion for Rehearing, July 3, 1909. On Modrunk to entertain an intent to kill, it would

tion to Modify Order Allowing New Trial, seem that he would have to be too drunk Nov. 6, 1909.) to entertain an intent to shoot.”

1. TAXATION (8 769*) - TAX DEEDS - SECOND The court also gave this instruction: "If TAX DEED. the defendant shot said Frank J. Emery, of a tax deed are regular and legal, the holder

“If all the proceedings up to the execution as charged in the information, and at the of the certificate is entitled to a deed in legal time of said shooting he was intoxicated, the form, and carrying that prima facie evidence of mere fact that he may have been intoxicated the regularity of all prior proceedings which at said time furnishes no excuse for the belongs to a statutory deed; and if through mis

take or inadvertence a different deed, and one killing of said Frank J. Emery, unless his substantially departing from the statutory form, intoxication was of such a degree that he has been executed, the county clerk can be comwas incapable of knowing the nature and pelled by mandamus to, and may without it. quality of the act of shooting said Emery, utory form. In other words, neither the power

execute and deliver a deed in correct and stator of of distinguishing between right

nor the duty of the county clerk is exhausted

and

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