Wheeler v. State. CRIMINAL LAW.-Evidence.-Defense of Insanity.-Expert Testimony.— For the purpose of ascertaining the peculiar and extreme views of a medical witness on the subject of insanity, a question eliciting the opinion of the witness regarding the sanity of a notorious assassin at the time he took the life of a public officer was within the legitimate bounds of cross-examination. p. 699. SAME.-Evidence.-Defense of Insanity.-Non-Expert Witness.-Cross-Examination.-The refusal of the court to permit defendant, in a criminal prosecution, to ask a non-expert witness, who had testified as to the sanity of defendant, for a definition of the word "mind," was not error. p. 699. SAME.-Evidence.-Defense of Insanity.-Expert Witness.-Confidential Relations.-Physician and Patient.—The testimony of a medical witness as to the sanity of defendant was not rendered incompetent by reason of the fact that the witness was the defendant's physician, where the facts upon which the opinion was based were not obtained through his professional relations to defendant. p. 699. SAME.-Motive.-Instruction.-An instruction in a prosecution for murder to the effect that proof of a motive to commit the crime is not indispensable nor essential to a conviction, and that the jury would be justified in inferring a motive from the commission of the crime itself, if the commission of the crime by defendant is proved beyond a reasonable doubt, as required by law, states the law correctly, and is not an invasion of the province of the jury. p. 700. SAME.-Defense of Insanity.-Instructions.-Reasonable Doubt.—Where in a prosecution for murder the court instructed the jury that a motive might be inferred if the commission of the crime by defendant was proved beyond a reasonable doubt, and that defendant was sane at the time, it was not necessary to repeat the statement made in other instructions on the question of reasonable doubt as to the sanity of the defendant. p. 700. SAME.-Murder.-Evidence.-Defense of Insanity.-Defendant was jealous of his wife, without cause, and, after repeated separations, he became so abusive that she obtained a divorce and went to live with their son-in-law. Defendant accused the son-in-law and his wife of separating him and his wife. He procured a revolver from a neighbor, and, the next day, went to the home of the son-inlaw and inquired of his divorced wife where his son-in-law was, and, upon being informed that he was in the field at work, asked if he was alone. He was told that he was alone, and started toward the field. He came back in a short time and told his daughter that her husband told him to have her bring him a jug of water. He told his other daughter to go to the garden and dig some potatoes. As soon as the daughters were gone he made a VOL. 158-44 Wheeler v. State. violent attack on his wife. The screams of the woman attracted the daughter from the garden, and she saw the son-in-law approaching, crying to his wife, "Oh, Oma! I don't believe I can live till I get to the house." Defendant seized an ax and started toward his son-in-law, who cried, "Don't kill me, please don't kill me. Defendant struck him with the ax, knocking him down, and then struck him another blow, almost severing his head from his body. When the body was examined three gunshot wounds were found in addition to those made with the ax. Defendant told his brother-in-law what he had done, and attempted to commit suicide. His only defense was insanity, which was very meager, it being shown that he had lived, worked, acted and talked as a sane man for more than thirty years immediately preceding the homicide. Held, that the evidence was sufficient to support a verdict convicting defendant of murder in the first degree. pp. 703–706. From Warrick Circuit Court; F. H. Hatfield, Special Judge. Willis B. Wheeler was convicted of murder, and he appeals. Affirmed. T. W. Lindsey and Roscoe Kiper, for appellant. W. L. Taylor, Attorney-General, Merrill Moores and C. C. Hadley, for State. DOWLING, J.-September 7, 1901, the appellant killed Elias Burns, his son-in-law, at the county of Warrick, in this State. He was arrested immediately after the homicide, and four days later an indictment for murder in the first degree was returned against him. September 13, 1901, he was arraigned, and entered a plea of not guilty. The cause was then set down for trial on September 27th. On September 24th he made an application for a continuance, the motion was sustained, and the trial was postponed until October 4, 1901, at which time it was ordered that an adjourned term of the court be held. At the request of the appellant a special venire for forty jurors was issued. October 4th the appellant, upon affidavit, demanded a change of judge; his motion was granted, and Mr. Frank H. Hatfield, a member of the Warrick county bar, was appointed a special judge to try the cause. The appellant thereupon filed Wheeler v. State. a plea of insanity, to which a reply in denial was filed by the State. A motion for a continuance was made by appellant, and was overruled. Appellant again asked that the trial be delayed, and filed additional reasons for its postponement. The application was denied. The cause was then submitted to a jury for trial, and on October 15, 1901, a verdict of guilty of murder in the first degree, with the death penalty, was returned. The defendant appeals. The errors assigned and not expressly waived by appellant are as follows: "The court erred in overruling appellant's objections to going to trial. The court erred in overruling appellant's motion to extend the time for arguing the motion for a new trial. The court erred in overruling appellant's motion for a writ of coram nobis. The court erred in overruling appellant's motion for a new trial.” 1. The grounds upon which appellant objected to the trial of his cause at the adjourned term of the Warrick Circuit Court were that said Warrick county was one of the counties embraced in the second judicial circuit, the other counties being Spencer and Perry; that before the trial could be finished at such adjourned term, the regular term of the Spencer Circuit Court would begin; and that the judge of the Warrick Circuit Court had no authority at an adjourned term to appoint a special judge to hold court for him. As the business of the Warrick Circuit Court remained undisposed of at the close of its September term, 1901, the judge was expressly authorized by statute to adjourn the court to any other time in vacation, and at such adjourned term to proceed with the business of the court as a part of the regular term of said court at which the adjournment was ordered. §1443 Burns 1901. Trials by other judges at such adjourned terms, where changes of venue have been taken from the regular judge, are provided for in the same section. Where an adjourned term is held in one county of a circuit composed of more than one county, it might, and Wheeler v. State. probably would, sometimes occur that a trial would extend beyond the day fixed by law for the beginning of the term in another county of the same circuit. Even in the absence of a statute regulating the proceedings under such circumstances, we do not think that the adjourned term would be abruptly terminated by the fact that the time fixed by law for the commencement of the regular term in such other county had arrived. If this result followed, the court might be compelled to discharge a jury in a criminal cause on trial at such interrupted adjourned term without the consent of the defendant, and, upon a second trial, possibly he might avail himself of the defense of once in jeopardy. It can not be supposed that the legislature intended the statutes fixing the terms of the courts in a circuit containing more than one county, and providing for adjourned terms whenever the business of any court in the circuit required them, to have this effect. While two regular terms of courts in different counties in the same circuit may not, perhaps, be held concurrently, we can perceive no good reason why an adjourned term of the circuit court in one county, at which a special judge presides, may not be held and lawfully continued after the commencement of a regular term in another county of the same circuit. Batten v. State, 80 Ind. 395; Smurr v. State, 105 Ind. 125. In Batten v. State, supra, it is said by Elliott, C. J.: "It is true that there cannot be two courts in one circuit in session at the same time, in regular term." This, we think, is as far as the restriction ought to be carried, and nothing in the cases of Smurr v. State, supra; Cain v. Goda, 84 Ind. 209, or Batten v. State, supra, conflicts with this view. Whenever a trial is begun and in progress at the time when, by law, the term of the court would expire, the statute extends the term until the close of the trial. §1402 Burns 1901. Counsel for appellant seem to have overlooked §1445 Burns 1901, which declares that if any adjourned term of court, presided over by a judge appointed for that purpose, be ex Wheeler v. State. tended so as to include the time set apart for the court in any other county in that circuit, the resident (regular) judge may proceed to hold the court in such other county while such adjourned term is being held. This section renders it entirely plain that an adjourned term in one county of a circuit may continue after the commencement of the time fixed for the regular term in another county in the same circuit. The authority of the regular judge, during an adjourned term, to appoint a special judge is as clearly conferred by the statute as is his right to perform any other official duty during such adjourned term. The adjourned term is made a part of the regular term, and anything a judge might do at a regular term he may do at an adjourned term. $1443 Burns 1901; Smith v. Smith, 17 Ind. 75; Sutherlin v. State, 150 Ind. 154. 2. The next error assigned is that the court refused to extend the time for arguing appellant's motion for a new trial. This subject was wholly within the discretion of the court, and it had the right to fix the time, space, or limit of the argument, and when it would hear it. In some cases it has been held that the court may decline to hear arguments upon motions in arrest, or for a new trial. Howell v. Commonwealth, 5 Gratt. (Va.) 664; Commonwealth v. Porter, 10 Metc. (Mass.) 263; Long v. State, 12 Ga. 293. And the argument to the jury in a criminal cause may be confined within reasonable limits, and such regulation will not constitute reversible error unless manifestly prejudicial to the rights of the defendant. 2 Cyc. 701, 704. The only argument expressly recognized by the statute is the argument to the jury. It is largely in the discretion of the court whether it will hear arguments on motions for a new trial, or upon questions of law addressed to itself. The sickness of one of the attorneys for the appellant did not constitute a sufficient reason for the postponement of the argument, and we find in this ruling of the court no abuse of the discretion with which it was invested. |
