Shults v. State.

While

candy-he was somewhat intoxicated at the time. at Doniphan witness had seen accused around the corner of a building drinking out of a bottle once or twice. After accused came to Hall county, Nebraska, witness saw him once in two or three weeks, or once a month just as it happened; had seen accused after accused had said his wife would make witness some candy; sometimes he was sober and sometimes he was not. Witness had never seen accused excited or angry since he had been in Hall county; witness had seen accused sometime before the killing of J. P. Farr, but could not say how long previous to that date; could not say in what year. Witness was then asked this question:

Q. Now, Mr. Grantham, from your acquaintance from the time you first met him in Butler county, was he in your opinion sane or insane during the time you have known him up to the 28th of August, 1891?

Objection was duly made to this question, which was overruled, and exception taken. Witness then answered: A. Well, sir, I should say he was a sane man, sir. Witness was then asked this question:

Q. From what you know of him from the time you first knew him in Butler county up to the 28th day of August, 1891, did he, in your opinion, know the difference between right and wrong as to the killing of J. P. Farr on August 28th, 1891?

After the overruling of due objection to this question, to which exception was taken, the following answer was made by the witness:

A. I should judge he did know right from wrong.

It will scarcely escape observation that all the preliminary inquiries made were introductory to two questions: First, whether the accused was sane or insane, in some instances on the day of the homicide, in others during the acquaintance of the witness with the accused; second, whether on the day of the homicide the accused could judge between right and wrong in respect thereto. This

Shults v. State.

evidence was in no instance given by an expert, hence the following quoted language is applicable thereto: In Schlencker v. State, 9 Neb., 250, occurs the following language: "The defense of insanity being interposed, and several witnesses having testified of strange conduct on the part of the prisoner shortly before and on the day of the homicide, a number of witnesses, not experts, however, were examined by the state as to his conduct and appearance in their presence on sundry occasions both before and shortly after the shooting occurred. The opinions of these witnesses as to the prisoner's mental condition, based upon what they had personally observed, and then detailed to the jury, were admitted in evidence under the objection that they were incompetent evidence. That none but medical experts shall be permitted to give to the jury their opinions, based upon the testimony of other witnesses on the question of insanity, is, we believe, universally held. In this case, however, the witnesses were the neighbors and acquaintances of the prisoner, knew him well, and their opinions were formed from seeing and observing him for several months almost daily. Opinions formed under these circumstances, although not those of medical men, are, nevertheless, entitled to respectful consideration by courts and juries, and we have seen no satisfactory reason for holding them to be incompetent evidence."

In Polin v. State, 14 Neb., on page 546, is found the following language: "Non-expert testimony on the question of the prisoner's alleged insanity was admissible. The witnesses had known the prisoner for years; were more or less intimately acquainted with his habits and practices, and formed their opinions from facts within their own knowledge. Their testimony was clearly within the rule announced in the case of Schlencker v. State, 9 Neb., 241."

In Burgo v. State, 26 Neb., on page 643, this court said: "It is probable that there is no better proof of the sanity or insanity of a person than the testimony of those who

Shults v. State.

are intimately acquainted with him and have observed his conduct for months or years."

The inquiry as to sanity or insanity is as to a fact, "and the expressed opinion of one who has had adequate opportunities to observe his conduct and appearance is but the statement of a fact; not indeed a fact established by direct and positive proof, because in most if not all cases it is impossible to determine with absolute certainty the precise mental condition of another, yet being founded on actual observation, and being consistent with common experience and the ordinary manifestations of the condition of the mind, it is knowledge, so far as the human intellect can acquire knowledge upon such subjects." (Connecticut Mutual Life Ins. Co. v. Lathrop, 111 U. S. Rep., 620.)

To testify as above indicated, it should be affirmatively shown that the non-expert witness has had sufficient acquaintance and means of observation to testify as to sanity or insanity as to any other physical fact. In support of the ruling of the court in excluding the opinion of Campbell, a witness of the class now under consideration, counsel for the defendant in error in their brief use the following apposite language: "The doctrine is well settled, in accordance with the current of authority, that the witness who is not a medical expert, may, in certain cases where the question of insanity is raised, and the state of mind of a person is the subject of investigation, state his opinion, but to warrant this being done, and such opinion being received in evidence, it must first be shown that the acquaintance of the witness with the party, whose sanity is questioned, is of an intimate character and his associations with him of sufficient duration to justify him in forming a correct judgment as to the intellectual status of the person whose sanity is under investigation." This rule properly excluded the testimony of Campbell, and with the same effect should have been interposed against the evidence of some of the witnesses on rebuttal, notably that of George

Shults v. State.

Grantham. The evidence should, to qualify a non-expert witness to testify as to a condition of sanity or insanity, show an acquaintance with that condition, which, in the instance last cited at least, was not sufficiently done. Not only so, but evidence of such condition must be confined to periods when there was sufficient opportunities for observation. It will readily be seen that some of these witnesses showed a disconnected acquaintance with the prisoner extending through several years, yet they testify as to the condition of the accused apparently in no way limited by or having relation to the periods covered by such observation. This could hardly be considered evidence pertinent to the existence of a fact, established though it was by observation. It may have been an inference by the witness deduced from the presumed continuance of the condition which the witness had observed, but that is not within the rule, or the reason of the rule, which permits the use of this class of evidence.

There is, however, a more radical objection to the testimony given by these witnesses in rebuttal than has been yet made, though it lies in the general course of former observations. After having shown opportunities for observation of the accused from twice a week to once in two or three months-in one instance at least, being no nearer than six weeks to the date of the homicide, witnesses were asked whether in their opinion the accused knew the dif ference between right and wrong on August 28, 1891, as to the killing of J. P. Farr. The evidence of these witnesses as to the sane or insane condition of the prisoner was tolerable, only because they testified as to the existence of sanity or insanity as a fact. What deduction was to be drawn from that fact was solely a question for the consideration of, and determination by, the jury. The contest was not as to the fact of the homicide, but was as to the legal responsibility of the accused for its commission. The court properly instructed the jury that if the accused at

Shults v. State.

the time, by reason of insanity, had not the capacity to distinguish between right and wrong, he could not be held accountable. This capacity was the sole question for the jury to determine. To allow the witnesses to testify that in their opinion the accused, when he committed the homicide, was sane, and, further, that he knew the difference bebetween right and wrong as to his killing of J. P. Farr, at the time of the commission of that homicide, was to allow of as incompetent evidence as to have permitted the same witnessess to testify whether or not in their opinion the accused was guilty as charged. If the testimony really given was accepted by the jury and acted upon as true, only a verdict of guilty could logically result. The reason for the rule allowing non-expert witnesses to testify as to sanity or insanity as a physical fact has been fully set out, that it may be obvious that in this there is no violation of the general rule which forbids witnesses not experts from testifying as to a mere opinion. In some courts even this class of evidence has been rejected because assumed to be but one kind of an opinion. By the great majority of courts, however, it is allowed because it is not open to that objection. This rule, however, furnishes no excuse for permitting non-expert witnesses giving what without doubt is a mere opinion, and that too upon the one vital question in the case-the legal accountability of the prisoner for a homicide admittedly committed by him. The judgment of the district court is

IRVINE, C., concurs.

REVERSED.

RAGAN, C., as counsel, having advised parties interested in respect thereto, took no part in the consideration or decision of the above case.