State v. Stickley. plain the term malice and points out when it will be presumed to be of the degree or character which constitutes murder. But, in using the term malice in these explanations, the adjective aforethought is not used in connection with it. This is the ground of counsel's criticisms. They are not well founded. The court in the language complained of explained to the jury what facts authorized the conclusion that malice had the quality of being aforethought. It was not necessary in doing so to couple the adjective, the meaning of which the court was explaining, with the word malice whenever it was used. Another instruction directed the jury to consider all the facts connected with defendant's language, appearance, etc., preceding the alleged homicide upon the question of defendant's insanity. They were informed, that these facts were to be considered to enable them to test the value of the opinions expressed by witnesses upon that subject, and also to determine the fact whether the insanity was established independently of such opinions. The purport of the instruction is obvious. If witnesses had testified that defendant was sane, and his actions, as shown by the testimony, were unmistakably those of an insane man, surely this should, in the minds of the jury, destroy the force of the opinions and lead them to the conclusion, upon the evidence of his actions alone, to find the existence of insanity. The like rule would be applicable did his acts establish sanity when the opinions of the witnesses were the other way. The objection to the instruction is without force. Others of the same character need not be noticed. In the Supreme Court of Iowa, December Term, 1875. 1. Moral Insanity no Excuse for Crime. -A person who is possessed of a sound mind is liable for a criminal act, though committed under the impulse of passion or revenge which may temporarily dethrone reason and control the will. 2. Insanity is only an Excuse for Crime where it is the direct cause of it. 3. Opinions of Witnesses, when admissible. APPEAL from Benton District Court. At the April term, 1873, of the Blackhawk District Court, the defend Facts in the Case. ants, Mary Stickley and Elmira Stickley, were jointly indicted with Richard George, for an assault with intent to murder one Byron Wright. Mary Stickley is the mother of Elmira, who, at the time of the commission of the offence charged, was about sixteen years old. Richard George was in the employment of Mary Stickley, and boarded and lodged at her house. There is some evidence that whilst he was there an engagement of marriage was made between him and Elmira. Wright took charge of a school very near to Mrs. Stickley's, and at the solicitation of Mrs. Stickley and Elmira, came to board with them. It would seem, from the evidence, that Elmira became very much enamored of him, and that the mother was quite willing to promote and encourage an intimacy between them. On the Thursday before the commission of the assault, Wright made arrangements to board with Kingsley, one of the directors, and remained there Thursday night. On Friday, Mrs. Stickley and her daughter interrogated him about boarding at Kingsley's, and he informed them he thought of going. On Saturday he told them positively he intended to go, and both urged him to stay. The testimony of Wright on this branch of the case is as follows: "Both fell to abusing me; asked why I wanted to change my boarding place; Mrs. Stickley said that if I would stay, she would give me what I owed her. I said that would be no object. Then she said she would give me what would be due her if I stayed to the end of my school. I said that would be no object. She then said, 'if you will stay and marry Elmira, I will give you the farm,' and neither of us should want while she lived. I told her that would be no object. They ended their pleadings by Mrs. Stickley saying: 'Then, damn you, go;' repeated that several times; got very angry; said they rather see me shot than to go to Kingsley's. This was Saturday morning." Saturday evening both again urged him to stay: Wright testifies: "Elmira came to me Saturday night, and said Mr. Wright, I will give you another chance. Won't you give up going to Kingsley's, and stay here?' I told her no, and, further, I wished she would not ask me that again; that it was my privilege to go where I pleased; and she said: 'Look out, maybe you will not go yet.' On Sunday morning Elmira renewed her expostulations, and when informed that he would not stay, she said: 'I had a notion to blow your brains out while you was in bed, but I will give you another chance.' When he went to church Elmira was weeping, and when he returned her mother said: She has been crying ever since you have been gone.' On Monday morning Wright dressed himself and went out, saying he would go over to school. Elmira, her mother and State v. Stickley. He said he would return at recess. George, all asked him to eat. At recess he came in and took his place at the table. Elmira came behind him and shot him in the back of the head. He took hold of the table, rose to his feet, and turned toward the outside kitchen door, and then fell to the floor on his face. He again rose and started to the door. When he reached the outside door George was standing with his back against it, and when he tried to get out, he pushed him away. This was repeated a half dozen times. Wright then went to a broken glass in the window to get air, and George shot him in the left side of the head in front of the ear. Mrs. Stickley was present, and the evidence tends to show that she encouraged and abetted the act. Mrs. Stickley testifies that after they retired Sunday night Elmira told her Wright had insulted her on Friday night in the school-house, but that she paid no attention to it, because she knew Elmira had told things before that were not true, and that she had imagined things. There was evidence tending to show that the father of Elmira was subject to fits of insanity, and that Elmira had insane spells; that there were peculiarities in her conduct at her monthly periods, and that the transaction in question occurred about that period. Upon the other hand, there was evidence tending to show that there was nothing peculiar about the father of Elmira, except that he was a very passionate man, and that nothing unusual was discernible in the conduct of Elmira previous to this event. The jury found both defendants guilty, as charged. The court sentenced Mary Stickley to the penitentiary for nine years, and Elmira Stickley, who, at the time of the sentence, was nearly seventeen years old, to the reform school until she should attain her majority. The defendants appeal. Boies, Allen & Couch for appellants. Cutts, Attorney-General for the State. DAY, J. — I. Immediately after the shooting George and Elmira got into a sleigh, and she drove, at a rapid rate, to Cedar Falls, a distance of about a mile. A witness, Packard, describes how she was dressed, her appearance, and manner of driving, and says he saw her a few minutes afterward in Taggart's store, and heard her talking, but paid little attention to what she was saying. That she was very much excited, and was relating something in regard to the occurrence. He was then asked the following question: "Will you state from your knowledge before, and your acquaintance with her, from her conversation at that time, and her looks at that time, whether, in your judgment, she was then in her right mind?" Must be Based on Stated Facts. The question was objected to, as incompetent and inadmissible, and the objection was sustained. In Pelamourges v. Clark, respecting the admission of opinion of witnesses, not experts; it is said: "The extent to which any of the authorities have carried the rule, even in the Eccles. iastical Courts of England, is, that after the witness has stated the facts and circumstances, then his conclusion or opinion derived from and resting upon them may be given."2 Tested by this rule, which has received the sanction of this court, and is abundantly sustained by authority, it seems quite clear that there was no error in excluding the question asked. The witness had described the appearance and manner of Elmira, but paid little attention to, and does not undertake to detail what she said. He was asked to give his opinion whether she was in her sound mind, from her conversation which he had not detailed, and her looks, and from his knowledge before and acquaintance with her. Now, however proper it might have been for him to express an opinion based upon her conversation and looks, if he had described her looks and detailed her conversation, so that the jury might have been put in possession of the facts upon which he based his opinion, and been enabled to estimate properly the value of his opinion, it is clear that he could not express an opinion from his former knowledge and acquaintance. Such evidence would be a mere substitution of the opinion of a nonprofessional witness for facts. 3 II. The defendant introduced testimony tending to show the defendant (Elmira) had been temporarily insane at different times prior to the alleged offence. In rebuttal, the State called Lyman Davidson, who stated he knew Stickley, and was then asked the following question: "Did you know the treatment he received from his wife?" The defendants objected to evidence of her treatment at other times than those in which it was claimed he was deranged. The objection was overruled, and defendants excepted. The witness answered: "They were a very peculiar family. They were very rough, and would swear like pirates; knew of their having family quarrels; the boys could not live at home; know the general character of Mrs. Stickley; it is very bad." This answer, it will be observed, is not all responsive to the question. It does not appear that any effort was made to exclude it from the jury. The mere asking of 19 Iowa 1. 2 See also Dunham's Appeal, 27 Conn. 193. 3 See the following authorities cited by appellee: Clapp v. Fullerton, 34 N. Y. 190; O'Brien v. People, 36 Id. 576; Real v. People, 42 Id. 270; Hewlett v. Wood, 55 Id. 634. See also the following cases in which the rule of exclusion is carried to still greater extent: Commonwealth v. Wilson, 1 Gray, 337; Commonwealth v. Fairbanks, 2 Allen, 511 Wyman v. Gould, 47 Maine, 159. State v. Stickley. the question, if erroneous, worked no prejudice to defendants. The answer was permitted to remain without objection, and even if it should be conceded that it contains improper evidence, it constitutes no ground for reversing the case. Where improper evidence is permitted to remain in a criminal case, without objection, the error in its admission is waived.1 III. The court instructed the jury as follows: "8. The nature, character, and degree of insanity which exonerates a party from criminal responsibility is not easily explained or understood. It is not necessary that it should be shown by the evidence that the defendant at the time of the commission of the act did not know right from wrong, as to her acts in general. The inquiry must be directed to the act charged. If you believe from the evidence that the defendant's act in shooting Wright (if she did shoot him), was caused by mental disease or unsoundness, which dethroned her reason and judgment with respect to that act, which destroyed her power rationally to comprehend the nature and consequences of the act, and which, overpowering her will, inevitably forced her to its commission, then she is not in law guilty of any crime, and your verdict as to her should be not guilty. But if you believe from all the evidences and circumstances in the case, that she was in the possession of a rational intellect or sound mind, or from some real or fancied injury she allowed her passion to escape control, then, though passion or revenge, may for the time, have driven reason from its seat, and usurped it, and urged the defendant with a force, at the moment irresistible, to desperate acts, she cannot claim for such acts the protection of insanity, and she is guilty. The practical question for you to determine from all the evidence is, whether passion and revenge or insanity, was the ruling force and controlling agency which led to the commission of this act. If you believe that the shooting was the direct result or offspring of insanity you should acquit; if of passion or revenge you should convict. You should indulge in no prejudice against the defence, but give it thoughtful, thorough and dispassionate consideration, and yet the interests of society and the welfare of the State demand that this defence ought not to be regarded as sufficient to exculpate, unless you believe from the evidence that the propensity to commit the act, existed in such violence as to subjugate the intellect, control the will, aud render it impossible for the defendant to do otherwise than to yield to the insane impulse. In other words, it should appear not only that the mind of the accused was insane, but that the State v. Polson, 29 Iowa, 133. |