Opinion
No. 20935
Decided May 31, 1928.
Constitutional law — Court will not pass upon constitutional question and declare statute invalid — Unless question presented by record and decision necessary to determination of cause — Criminal law — Homicide not justified by acute alcoholism or mental incapacity from temporary voluntary intoxication — Proof of intoxication competent upon intent and premeditation and to determine degree of crime — Drunkenness is not insanity, when — Charge to jury — Party to call court's attention to omission and request instruction thereon — Omission to charge self-defense not prejudicial in absence of evidence and request — Impanelling jury — Court may determine manner of exercising peremptory challenges, when.
1. A court will not pass upon a constitutional question and declare a statute invalid unless such question is presented by the record and a decision upon that point becomes necessary to the determination of the cause.
2. Acute alcoholism or mental incapacity produced by voluntary intoxication existing temporarily at the time of the homicide is generally no excuse or justification for the crime. Proof of such intoxication, however, is competent and proper for the jury to consider as bearing upon the question of intent and premeditation, in determining whether the accused is guilty of murder in the first degree or some lesser degree of homicide, or to show that no crime was committed. ( Nichols v. State, 8 Ohio St. 435; Davis v. State, 25 Ohio St. 369; Cline v. State, 43 Ohio St. 332, 1 N.E. 22, and Long v. State, 109 Ohio St. 77, 141 N.E. 691, approved and followed.)
3. Drunkenness is not insanity, nor does it answer to what is termed an unsound mind, unless the derangement which it causes becomes fixed and continued by the drunkenness being habitual, or by chronic alcoholism, and thereby rendering the party incapable of distinguishing between right and wrong, the same as insanity produced by any other cause.
4. In a criminal case where the court omits to charge upon a feature of the law claimed to be applicable to the evidence, the defendant, in order to predicate reversible error upon the court's omission, should call the court's attention to that point and make a specific request for such instruction.
5. Where upon trial for murder the evidence does not show facts at the time of the homicide which justified a charge upon the subject of self-defense, and no request was made for such instruction, its omission by the court will not warrant a reversal upon such ground.
6. In a trial for murder in the first degree, the trial court may determine the manner of the exercise of the right of peremptory challenge in the absence of a rule fixed by statute governing the same.
ERROR to the Court of Appeals of Hamilton county.
This is a proceeding in error to reverse the Court of Appeals of Hamilton county. The salient points to be decided arise upon the following state of facts:
Plaintiff in error, defendant below, John Rucker, was indicted for murder in the first degree by the grand jury of Hamilton county; the first count of the indictment charging murder with deliberation, premeditation, and malice aforethought. The second count charged the killing of a Cincinnati police officer, named John Franken, while said Franken was engaged in the discharge of his duty as a policeman. Rucker was found guilty of murder in the first degree on both counts, without recommendation of mercy, and was sentenced accordingly.
The record shows that Rucker, with some companions, about noon on July 4, 1927, left his home at 769 Kenyon avenue, between Linn and Jane streets, in Cincinnati, and went to Newport, Ky., where they visited several places at which large quantities of liquor were procured, and in addition thereto a drink composed of what is termed "canned heat," made by pouring over the contents of a can from which some soft substance was procured a beverage commonly called "Coca-Cola," and this compound was drunk by Rucker and his companions. He became highly intoxicated, and was conveyed from Newport back to Cincinnati in an automobile. He was taken to 721 Kenyon avenue, where he seems to have become engaged in a dispute of some kind, and left this house and walked west to his home at 769 Kenyon avenue. He then came out of his residence, carrying a shotgun and an automatic pistol. The latter he placed in his pocket. Along near 721 Kenyon avenue he was stopped by a colored woman, who engaged in a heated argument with him. Rucker pointed the gun at her, but without discharging it. He then turned west and walked away from the woman. She followed him, saying she was going to stay with him until the police came, whereupon Rucker drew the automatic pistol from his clothing and pointed it at the woman, who thereupon stopped following him, and Rucker continued west on Kenyon avenue.
Various witnesses described the appearance of Rucker as staggering, talking to himself, shaking his head, reeling, looking wild, crazy drunk, and other symptoms characteristic of acute alcoholism. Word had been sent to the Fourth District Police Station concerning the actions of Rucker, and Officers Yearion and Franken had been ordered to the scene. They were in a Ford coupe, and drove eastwardly on Kenyon avenue, and Rucker was walking westwardly. They appear to have passed the defendant, who was walking west, and went a short distance before they stopped their automobile. They jumped out quickly, each from his own side of the machine, and approached Rucker, who was standing on the sidewalk. Both officers were clothed in what is called the "summer uniform." Officer Yearion, being nearer the defendant, called upon him to drop his gun just as he (Yearion) was stepping onto the curb. Neither officer had drawn a weapon. Upon discovering them, Rucker turned his back upon them and cocked the shotgun. Immediately wheeling around, he discharged the shotgun at Yearion and struck him in the leg, some of the shot striking Franken in the hand. Yearion's left leg, having received almost the full charge, began bleeding freely, and Yearion was almost entirely disabled. He fell across some steps, and, while severely wounded, he raised himself into a leaning position upon the steps and fired some shots at Rucker, who had begun to flee toward the west, running down Kenyon avenue. Franken by this time had drawn his pistol and fired at the escaping defendant. At the same time, Franken ran after Rucker, causing Yearion to stop shooting. One of the bullets from the officers' revolvers struck Rucker in the back. Rucker quickly reached the corner of Jane street, but, in attempting to turn into it, he stumbled and fell; it being claimed by the state that in so doing the shotgun was broken. The fall of Rucker permitted Officer Franken to catch up with him. Rucker had fallen forward on his face, and when Officer Franken leaned over him, putting his hand upon his shoulder, using the words "What's the matter with you, boy?" or "What is the matter with you, Buddy?" Rucker drew an automatic revolver from his clothing and began shooting, one bullet striking a doorway, another hitting a bystander, and a third bullet entering Officer Franken's abdomen, causing a fatal wound, which resulted in his death a day or two later. In the struggle, Franken endeavored to hold and subdue Rucker and struck him with the butt of his pistol, calling for help. Two men came to his assistance and held the defendant down on the sidewalk until two other police officers, who had heard the shooting, reached the scene. It was after the arrival of the two additional officers that Rucker was roughly handled by one of these officers and received some scalp wounds, for which he was treated in the General Hospital.
As heretofore stated, Rucker was indicted upon two counts, tried and found guilty, without recommendation of mercy. Upon the overruling of a motion for new trial, judgment was entered upon the verdict, and sentence was passed according to law. The Court of Appeals of Hamilton county reviewed the record and affirmed the judgment of the court of common pleas. Error is now prosecuted to this court to reverse such judgment.
Mr. Simon L. Leis and Mr. O.W. Hardin, for plaintiff in error.
Mr. Charles P. Taft, II, prosecuting attorney, Mr. Carl E. Basler and Mr. John Clippinger, for defendant in error.
The errors complained of in this record may be grouped under three heads: (1) Error as to the claimed defense of insanity; (2) error as to the exercise of peremptory challenges by the state; and (3) error as to the failure of the court to charge on self-defense.
As to the defense of insanity, in homicide cases the line of demarcation between such defense and that of drunkenness is clearly defined. In the case of Long v. State, 109 Ohio St. 77, at page 86, 141 N.E. 691, 694, it is said:
"It is well established in American jurisprudence that drunkenness is not a defense to crime. When all the elements of a criminal act have been proven, the accused will not as a general rule be heard to allege his voluntary intoxication as an excuse. It is an exception to this general rule that one who is accused of a crime, the definition of which involves some specific intent, or the operation of other mental processes, intoxication, though voluntary, may be considered in determining whether or not the act was intentional, or, as in cases of first degree murder, involving the element of deliberation and premeditation, the fact of intoxication may be considered to determine whether deliberation and premeditation existed.)"
This principle has been recognized in Ohio in Nichols v. State, 8 Ohio St. 435; Davis v. State, 25 Ohio St. 369; Cline v. State, 43 Ohio St. 332, 1 N.E. 22. See, also, 36 L.R.A., 470; 13 L.R.A. (N.S.), 1024; 12 A. L. R., 869; 23 A. L. R., 438 — where the cases are collated upon the subject.
From the foregoing citations it is deducible that the decisions are quite uniform to the effect that voluntary intoxication is no defense to crime. It may affect, however, the degree of a homicide and have a bearing upon the question of intent, premeditation, and deliberation.
Coming now to the consideration of the question of insanity, a different rule prevails; and settled insanity, which becomes fixed and established as a diseased condition of the mind, produced by habitual intoxication, affects criminal responsibility in the same way as insanity produced by any other cause. The distinction is well stated in the case of Cheadle v. State, 11 Okl. Cr., 566, 149 P. 919, L.R.A., 1915E, 1031:
"The defense was based on two theories. One that Jim Helms, the state's chief witness, did the shooting; and the other that the defendant was temporarily insane if in fact he fired the fatal shot, and the homicide was excusable by reason of his insanity. In the instructions given, the court submitted the issue of murder and the defense of insanity. We are of the opinion that, on the undisputed facts, the issue of insanity was not raised by the evidence. Alcoholic insanity, or mental incapacity produced by voluntary intoxication, existing only temporarily at the time of the commission of the homicide, is no excuse or defense in a prosecution therefor. Drunkenness is one thing, and the disease of the mind to which drunkenness leads is a different thing. Temporary insanity, occasioned immediately by drunkenness, does not destroy responsibility for crime, where the defendant, when sane and responsible, voluntarily makes himself drunk. To constitute insanity, caused by intoxication, a defense to an indictment or information for murder, it must be insanity caused by chronic alcoholism, and not a mere temporary mental condition. The distinction between a fit of drunken frenzy or madness, commonly called 'delirium tremens,' and temporary delusional insanity, a disease caused by excessive and long-continued indulgence in alcoholic liquors, technically called 'delirium tremens,' or 'mania a potu,' is well defined by the authorities and text-writers.
"See State v. Kidwell, 62 W. Va. 466, 13 L.R.A. (N.S.), 1024, 59 S.E. 494; Wharton Stille's Medical Jurisprudence, Section 940.
"The principle is everywhere recognized that voluntary intoxication is no justification or excuse for crime, and is no excuse for homicide, though carried to the extent of producing incapacity to control the mind and will, while intoxication does not excuse homicide, it may produce a state of mind in which one is incapable of forming a design to take life, and evidence of intoxication is admissible only as bearing upon the existence or nonexistence of malice. Miller v. State, 9 Okl. Cr., 55, 130 P. 813."
Also in State v. Kidwell, 62 W. Va. 466, 59 S.E. 494, 13 L.R.A. (N.S.), 1024:
"A person who, being sane and responsible for his acts, voluntarily becomes intoxicated, with or without a preconceived design to commit murder or other crime, and while intoxicated, though it be to such a degree as to render him wholly oblivious to his acts or conduct, commits a homicide or does any other act which, if done by a person capable of distinguishing between right and wrong, is criminal, if not excused or justified in some way, is held responsible by the law for his act, notwithstanding his mental condition at the time. * * *
"Insanity, though superinduced by long-continued indulgence in intemperance or intoxication and known as delirium tremens, or mania a potu, renders the person so afflicted irresponsible for his acts, if it be of such character as to deprive him of the power to distinguish between right and wrong, whether he be under the influence of liquor at the time of the commission of the act or not; but, to do so, his affliction must be settled or fixed insanity, not a mere fit of drunkenness. A person, not previously laboring under such diseases or affliction, who voluntarily becomes intoxicated to such an extent and for such a period of time as to cause unconsciousness of his acts and affliction with delusions and hallucinations, is not irresponsible under the law for the acts done by him while in such mental condition.
"The accused on the trial of an indictment for murder is not entitled to an instruction, propounding the inquiry as to whether he was insane at the time of the killing, if the evidence adduced by him to sustain such defense lacks tendency to show mental unsoundness antedating the drunken spree, in the course of which the killing was done, and also to show that intoxication had ceased and settled insanity ensued, as a result of habitual indulgence in intoxication."
The case of Director of Public Prosecutions v. Beard, [1920] L. R., A. C., 479, 12 A. L. R., 846, decided by Lord Birkenhead in the House of Lords, contains an elaborate discussion of the English cases bearing upon the subject, and the notes by the editors of the American Law Reports give an exhaustive summary of the American cases, appearing on pages 861 and 895 of the report cited. See, also, State v. O'Neil, 51 Kan. 651, 33 P. 287, 24 L.R.A., 555; State v. Habb, 105 La. 230, 29 So. 725.
With these distinctions in mind, what does the record in this case show? In the opening statement of counsel on behalf of the accused, he claimed the defendant was "mentally befogged," "mentally deranged," in a state of "irrational mind," of "unsound mind," "that he knew not and did not have the faculty of a reasoning brain," "that he did not have the power to know right from wrong," "did not have the power to know what acts he was doing or the acts which he is alleged to have committed," and that "prior to the homicide his habits were good and his character was good."
Further, the record discloses that a request for instruction to the jury, both before and after argument, was made by counsel for the accused, to the effect:
"If you find that the defendant was insane at the time of the commission of the crimes alleged in the first and second counts of the indictment, you must find the defendant not guilty on the sole ground of insanity."
The record also discloses that during the progress of the trial considerable colloquy took place between court and counsel as to this claimed defense of insanity; counsel for the accused stating that "our defense is both drunkenness where he cannot tell right from wrong, and drunkenness so that the man was insane." "We want to raise two defenses in this case: First, drunkenness where he cannot tell right from wrong; second, drunkenness where he was insane."
It was the position of the trial judge that the defense of insanity was not in the case, but that it was a defense based upon a mental condition due to voluntary intoxication.
This request for instruction before argument was refused, and the court was not required in a criminal case to give such requests before argument, Wertenberger v. State, 99 Ohio St. 353, 124 N.E. 243; Blackburn v. State, 23 Ohio St. 146. In the general charge, however, the court did instruct as follows:
"If the defendant was suffering from an attack of the delirium tremens or total deprivation of his mental faculties, superinduced by intoxication, this exempts the defendant from responsibility for crime, like insanity produced by any other cause."
Certain lay witnesses were called by the accused, and were asked whether in their opinion Rucker was of sound or unsound mind at the time of the homicide. Both of these witnesses had described the appearance of Rucker, so that the jury were fully advised of what the witnesses observed of the defendant. The witnesses were not asked whether they were able to express an opinion on the subject, and were not qualified as lay expert witnesses usually are. The jury had the full benefit of all the facts upon which such opinion would be expressed, and doubtless were as able as the witnesses to form an opinion thereon. "The determination of the question whether a particular nonexpert witness is sufficiently qualified to express an opinion on the mental condition of another is necessarily to a great extent within the sound discretion of the trial court." 16 Corpus Juris, 752; State v. Barry, 11 N.D. 428, 92 N.W. 809; Jones v. State, 181 Ala. 63, 61 So. 434; Maulding v. Commonwealth, 172 Ky. 370, 189 S.W. 251.
While profert of the answer of the witnesses, to the effect that they would say the accused was of unsound mind, was made, we do not think that under the issues of the case the accused was prejudiced by failure to permit the two witnesses in question to express their opinion. The entire record shows that the defense was that of voluntary intoxication, affecting the mental processes of the accused, and not insanity. There was no testimony in the case tending to show any insanity or unsoundness of mind in the accused prior to the date of the homicide, nor was there any history of insanity in his family. On the contrary, the testimony tended to show that the accused was of good health and of good habits, and we can find nothing in the record which shows any taint of insanity, either in himself or his family, prior to the homicide.
We are unable to reach the conclusion that insanity as a defense to this homicide was shown to exist by this record. Rather is it a case of acute alcoholism, as testified to by the physicians who treated Rucker for his wounds, at the hospital, after his arrest; and such mental incapacity as he suffered was rather that of voluntary drunkenness and not insanity.
As above indicated, the defendant did not seek to take advantage of Section 13608, General Code (112 Ohio Laws, 168), and no steps were taken thereunder. It therefore must follow that this court may not pass upon the constitutionality, nor determine what the rights of the accused might have been under such section had the same been invoked. None of the terms of the statute being before the court for consideration, it follows that there is no question for this court to determine arising therefrom. The rule is well stated in Cooley's Constitutional Limitations (8 ed.), 338:
"Neither will a court, as a general rule, not pass upon a constitutional question, and decide a statute to be invalid, unless a decision upon that very point becomes necessary to the determination of the cause."
Upon a full examination of the record as to the question of the insanity of the accused, we find no reversible error.
Second, as to the claimed error in the matter of peremptory challenges, the record shows that, upon the opening of the trial, counsel for the accused inquired of the court:
"What is your honor's wish in the matter of challenges; one to four?
"The Court: Yes, one to four."
The trial proceeded, and later on it developed that the state had not exercised its peremptory challenges upon all occasions when the defendant had exercised four, but that upon inquiry by the court of counsel for the state reply was made that there was no peremptory challenge to be exercised at that particular time; that is to say, the state passed its peremptory challenge, but did not waive its right thereto. A controversy arising with reference to the right of the state to further challenge peremptorily, having once passed the exercise thereof, the court said:
"The order of challenges is simply a matter of convenience, rather than preclusion, and the state of Ohio grants the defendant sixteen peremptory challenges, and the state four challenges, and it is merely to expedite matters that the order is set down. It is entirely within the discretion of the court; the statutes of our state set down the number of peremptory challenges, and either side cannot be precluded from exercising those. * * * The law of Ohio gives the state four challenges, and the mere matter of rotation is done to expedite the selection of the jurors; that is all it is done for, because the defendant has so many more challenges than the state, and it is merely to expedite the selection of the jury."
The court further said:
"About the law of Ohio being, they are entitled to four. It is entirely within the discretion of the court; and the order of challenges is entirely discretionary. * * * You cannot preclude the state from exercising their challenges any more than they could preclude you (the defendant's counsel) from exercising your statutory rights."
The foregoing excerpts from the record disclose the position of the trial court in overruling the objection of the defendant to the exercise of peremptory challenges by the state after it had passed, but not waived, such challenge. We are cited to the case of Lyon v. State, 16 Ohio St. 265, 155 N.E. 800. It is to be noted, however, that in that case a somewhat different rule was indicated by the trial court than in the case at bar, and we find nothing in that case which justifies a reversal herein. It is said in the opinion by Kinkade, J., at page 273 (155 N.E. 802):
"The time at which and the manner in which peremptory challenges shall be exercised in the trial of a criminal case is not fixed by statute, and where it is not so fixed the right must be controlled by the exercise of a sound judicial discretion by the trial judge. The rule has been well stated by the Supreme Court of the United States in the case of Pointer v. United States, 151 U.S. 396, 410, 14 S.Ct., 410, 415 ( 38 L.Ed., 208), as follows: 'But the general rule is, that where the subject is not controlled by statute, the order in which peremptory challenges shall be exercised is in the discretion of the court."
We think the trial court was within the rule above indicated. Entertaining such view, we find no reversible error in the matter of the peremptory challenges. Third, was the court's failure to charge on self-defense prejudicial to the accused?
In the first place, the record discloses no request on the part of counsel for Rucker for such charge. The court's attention was in no wise directed to the subject of the claimed defense of self-defense. At the conclusion of the general charge, the court inquired of counsel: "Is there anything that counsel have to suggest?" In reply thereto, no reference is made to self-defense. The only subject mentioned by counsel for the accused was that of the claimed defense of insanity.
"Under the long-established rule of Ohio, when the court omits to charge upon a feature of the law applicable to the evidence, the defendant, in order to predicate reversible error upon the court's omission, should call the court's attention to that point and make a specific request for such instructions. Since such action was not taken in this case, the objection in this court is not tenable." Scott v. State, 107 Ohio St. 475, 497, 141 N.E. 19.
See, also, State v. McCoy, 88 Ohio St. 447, 103 N.E. 136.
Further, however, the record does not justify a charge of self-defense, as it clearly appears that the accused, after discovering the officers and realizing that they were such and about to arrest him, opened fire upon them with a shotgun, wounding Officer Yearion; and the actions of the accused thereafter were all along the line of escaping and resisting arrest. We can see no occasion for applying the law of self-defense, and the trial court was right in not charging thereon.
Upon a careful examination of the record and the briefs in the case, while we are impressed with the diligence of counsel in the discharge of their duty intrusted to them by the court in their appointment to appear for the defense of the accused, we are unable to find any prejudicial error justifying a reversal of this judgment. It therefore follows that the judgment of the Court of Appeals should be, and it hereby is, affirmed.
Judgment affirmed.
MARSHALL, C.J., ALLEN, KINKADE, ROBINSON, JONES and MATTHIAS, JJ., concur.