Opinion
No. 37349.
May 8, 1950.
1. Criminal procedure — insanity — excluding testimony calculated to raise a reasonable doubt.
In a prosecution for murder, wherein the defense was insanity, it was error to exclude the testimony of a physician in response to a hypothetical question embodying the material facts in the case, the physician having answered that he did not believe the accused knew the difference between right and wrong and error also to exclude the testimony of the father of the accused as to the previous state of mind of the accused, since such testimony was calculated to raise a reasonable doubt that accused was of such mental condition as to be able to distinguish between right and wrong at the moment of the homicide.
Headnote as approved by McGehee, C.J.
APPEAL from the circuit court of Warren County; R.B. ANDERSON, Judge.
John H. Culkin, for appellant.
The lower court should have overruled the objection of the State to the testimony of Dr. Podesta and Porter Lewis, Sr., and permitted this testimony to be presented to the jury for their consideration in arriving at their verdict in this case. Wigmore on Evidence, Sec. 228, p. 278; Bishop v. State, 96 Miss. 846, 52 So. 21; Church-Peterson on Nervous and Mental Diseases, pp. 484, 485, 487; Waycaster v. State, 185 Miss. 25, 187 So. 205; Fritz Cole v. State, (Miss.) 150 So. 757; Brock v. State, 92 Miss. 712, 46 So. 67; Cunningham v. State, 56 Miss. 276; Ford v. State, 73 Miss. 734.
The court erred in admitting in evidence before the jury, over the objection of appellant, the alleged confession made by appellant at the time of his arrest. Boyd v. United States, 116 U.S. 116; Ellis v. State, 65 Miss. 48, 12 Cyc. 477.
Instructions refused appellant. Wilkie v. Collins, 48 Miss. 738; Owen v. State, 80 Miss. 499; Cook v. State, 85 Miss. 738; Gentry v. State, 108 Miss. 505, 66 So. 982.
The court committed error in not granting appellant a new trial when motion was made, after testimony of Dr. Podesta and Porter Lewis, Sr., was excluded from consideration of the jury. Clayton v. State, 117 So. 127.
The trial court erred in refusing to grant to appellant the two instructions requested by him, appearing at the bottom of Page 15, and at the top of Page 16, of the record. Butler v. State, 177 Miss. 91, 170 So. 148; Taylor v. State, (Miss.) 194 So. 589.
The errors complained of by appellant in this case began with the exclusion, by the trial court, of practically all of the testimony offered by him, and especially the expert and non-expert testimony with reference to the mental condition of appellant at the time of the alleged crime, and for many years prior thereto. This was followed by the court's refusal to grant a mistrial. The court also committed error, in our opinion, in admitting in evidence the alleged confession of appellant. Of the nineteen instructions requested by appellant, the court refused eleven, and granted eight. Of the refused instructions, two of them were based on the theory that the jury should have been permitted to draw their own conclusion from the evidence as to whether or not a manslaughter verdict should be proper. We respectfully submit that all of the appellant's instructions were drawn with great caution, and should have been granted. R.O. Arrington, Assistant Attorney General, for appellee.
The appellant, Porter Lewis, was convicted of the murder of his wife and sentenced to death. We are of the opinion that only one of the assignments of error on this appeal is well taken.
(Hn 1) The trial court excluded the testimony of the doctor who testified in response to a hypothetical question, embodying the material facts in the case, that "I do not believe he (the accused) knew the difference between right and wrong". In view of the character of the disease from which the accused had suffered since infancy and the other material circumstances of the case, we think that it was a question for the jury as to whether or not the testimony of the doctor and of the father of the accused as to his previous state of mind, whose testimony was also excluded, was such as to be calculated to raise a reasonable doubt as to whether or not he was of such mental condition as to be able to distinguish between right and wrong at the moment he shot and killed his wife.
We refrain from discussing the facts of the case in detail since the cause is to be retried. It is sufficient to say we think the trial court was in error in excluding the above mentioned testimony as shown by the decisions of this court in the cases of Cunningham v. State, 56 Miss. 269, 21 Am. Rep. 360; Smith v. State, 95 Miss. 786, 49 So. 945, 27 L.R.A., N.S., 461, Ann. Cas. 1912, 23, and Waycaster v. State, 185 Miss. 25, 187 So. 205.
The cause will, therefore, be reversed and remanded for a new trial.
Reversed and remanded.