The Judge carefully defined and explained the difference between first and second degree murder—lack of premeditation in the latter; he then defined manslaughter as a killing without either premeditation or malice; he then defined the presumption of innocence and moved on to reasonable doubt. The Sheriff came forward with a fresh pitcher of water.
The Judge paused and slowly sipped some water, thoughtfully turned a page of his notes, and then went on. “A reasonable doubt, then, is a fair doubt, growing out of the testimony in the case; it is not a mere imaginary, captious or possible doubt, but a fair doubt based on reason and common sense. It is such a doubt as shall leave your minds, after a careful examination of all of the evidence in the case, in that condition that you cannot say you have an abiding conviction to a moral certainty of the truth of the charge here made against the respondent.”
As Parnell and I had anticipated he would, the Judge next quietly blasted the notion that the jury could acquit the defendant under so-called “natural law.” “There is no such animal in our law,” he dryly went on. “It exists only in public bars and on street corners and I charge you to dismiss it wholly from your minds.” He then went on explicitly to instruct the jury that they could also not acquit the defendant simply because Barney had allegedly raped his wife, even if they firmly believed that he had. The Judge dilated on this subject much as I had done with the Lieutenant weeks earlier, and some of the jurors blinked uncertainly, having rather plainly thought otherwise up until then.
The Judge looked out at the clock and turned his papers and again spoke. “In defense of this charge the defendant has pleaded insanity and I now instruct you on the law of that subject.” I glanced down at my copy of our requested instructions so that I could determine when and if he started giving any of them. We had numbered our instructions consecutively and my heart leapt as I saw that he was now giving the first of them, word for word.
“At the outset there is a presumption in cases of this kind that the respondent is sane, but as soon as evidence is offered by the respondent to overthrow this presumption, the burden shifts and it then rests upon the People to convince the jurors beyond a reasonable doubt of the respondent’s sanity, as that is one of the necessary conditions upon which guilt in this case may be predicated. When any evidence is given on behalf of the defendant which tends to overthrow that presumption of his sanity, the jurors should examine, weigh and pass upon it with the understanding that, although the initiative in presenting the evidence is taken by the defense, the burden of proof in this part of the case is upon the prosecution to establish all the conditions of guilt, of which sanity is one. Where there is any evidence in the case by the respondent which tends to show that at the time of the commission of the offense he was laboring under either permanent or temporary insanity, it then becomes the duty of the prosecution to prove the sanity of the respondent beyond a reasonable doubt, as I have just defined that term, and unless they have done so the defendant must be acquitted.”
The Judge flipped a sheet and, obviously reading, but looking up occasionally like a competent TV newscaster, proceeded to give our second instruction verbatim. “It is claimed here on behalf of the defendant that he was insane at the time he fired the fatal shots. His defense, as I understand it, is one generally known as temporary insanity, and I charge you that such a defense, if proven to your satisfaction, is just as valid as though the defendant were shown to be totally and permanently insane. In other words, the duration of the defendant’s insanity is not the controlling test, but the issue is whether his insanity, however brief, was of such a nature and character as to render the defendant incapable of either (1) exercising his own free will and volition or (2) of appreciating the difference between right and wrong. If you should find that at the time he fired the fatal shots he was suffering from either such insanity, then you should acquit him, despite the fact that prior and subsequent thereto he may have been as sane as you and I.”
I glanced over at Parnell, who sat leaning forward tensely listening with his eyes winced shut. It was now apparent that the Judge was going to give our requests on insanity, at least, and he had already injected irresistible impulse into the case. “One of the important incidents of legal responsibility for crime,” he went on, “is that the defendant must have had his wits about him, that is, that he must have been a sane person. And in the absence of proof to the contrary all men are in the eyes of the law presumed to be sane. But where the sanity of the defendant has been put in issue in a criminal case, as it has been put in issue in this case, then the burden of proof shifts to and falls on the People to prove the sanity of the defendant beyond a reasonable doubt. It follows, therefore, that if you should find (1) that the defendant here was insane at the time the fatal shots were fired or (2) that a reasonable doubt remains in your minds as to his sanity at that time, then, in either case, you should acquit him on the ground of insanity.”
The Judge continued his charge on insanity exactly as we had prepared our requests. “As I have said, the main matter of defense offered here on behalf of the defendant is that he was insane at the time of the alleged offense and was therefore not legally responsible for his acts. The defendant has introduced evidence on his behalf tending to show that one of the contributing factors to such alleged insanity may have been his belief that his wife had just been threatened and assaulted and raped by the deceased.”
The Judge paused and I held my breath waiting to see if he would give the next part. “In this connection I charge you that if you believe that the defendant was insane, as I have defined that term, it is not controlling on this issue of insanity that you should first find that the defendant’s wife was in fact actually threatened, assaulted and raped by the deceased or indeed that any of these things had happened to her. It is enough that you should find that the defendant actually believed that these things had occurred to his wife and that the deceased was guilty of them and that this belief of the defendant was based upon reasonable grounds.
“In other words it is sufficient that you find that the defendant actually believed his wife’s story and that this belief was based on reasonable grounds and that it actually contributed to any alleged insanity on the part of the defendant, if you should find any such insanity, even though in fact no such threats, assaults or any act of rape may ever have actually occurred.”
I again glanced at a tense white-faced Parnell, who seemed to be moving his lips with the Judge, as the Judge then delivered Parnell’s pet charge on irresistible impulse. “Expert medical testimony has been offered on behalf of the defendant that he was insane at the time the fatal shots were fired, and that it was a form of insanity generally known to the law as ‘irresistible impulse.’ I charge you that such a form of insanity is recognized as a defense to crime in Michigan and that it is the law of this state that even if the defendant had been able to comprehend the nature and consequences of his act, and to know that it was wrong, that nevertheless if he was forced to its execution by an irresistible impulse which he was powerless to control in consequence of a temporary or permanent disease of the mind, then he was insane and you should acquit him.”
The Judge paused and then quoted verbatim from the old Durfee case that Parnell and I had simultaneously run on to during our research. “As was said in an earlier Michigan supreme court case on this subject: ‘It must appear in this case that the defendant is a man of sound mind. Now, by “sound mind” is not meant a mind which is the equal of any mind possessed by any mortal in the world. We all know that there is a difference in the minds of our acquaintances. Some men are very bright, others are very dull; but they are held accountable. Perhaps it would be enough to say—and to leave it right here—that if, by reason of disease, the defendant was not capable of knowing he was doing wrong in the particular act, or if he had not the power to resist the impulse to do the act by reason of disease or insanity, that would be an unsound mind. But it must be an unsoundness which affected the act in question, and not
one which did not affect it. There is a simple question for you.’”
I again stole a look at Parnell and he rolled his eyes up in his head as though in silent thanksgiving as the Judge rolled irresistibly on. “Even if you should find here that the defendant knew the difference between right and wrong, then, if at the time of the shooting he had by mental disease or insanity so lost the power to choose between right and wrong that his free-will agency was at that time destroyed, and the act was so connected with said mental disease or insanity as to have been the sole cause of it, then the defendant would not be responsible, and your verdict should be ‘Not guilty because of insanity.’”
The Judge cleared his throat as he came to our crucially important request on the relative opportunities of the respective psychiatrists to obtain the knowledge upon which their opinions were based. “There has been expert medical testimony offered here on the question of the sanity or insanity of the defendant. In this connection I charge you to consider the testimony of the doctors and their opinions on the subject. Also consider what opportunity the doctors had to obtain knowledge upon which to base their opinions.”
This was taken whole from the old case I had dug up, and I had wanted badly to dilate and enlarge on it but dared not; that was one of the ticklish things about requested instructions: a lawyer found authority for a proposition but if he sought to extend or inflate it too much to fit his case he ran the risk of shaking the Judge’s confidence in all his requested instructions and, worse yet, the further risk that the Judge might not give the particular request at all.
But here, for the first time, the Judge on his own motion went beyond the letter of our request, and my heart leapt as I heard him resonantly rumble on. “Considering the opportunity of the doctors to obtain knowledge of course includes the physical opportunity to examine the man whose sanity is in question; what tests if any were given; a consideration of the prevailing practices in the field of psychiatry, so far as they may have been shown; and finally whether there was any sufficient opportunity at all upon which to base any opinion.”
The Judge loosened his collar with his broad middle finger. “I have already told you that the fact that the deceased may or may not have raped the defendant’s wife does not, in itself, afford the defendant legal justification or excuse for taking the life of the deceased. But, as we have already seen, we must nevertheless consider the question of rape in this case as it might bear on the possible insanity of the defendant and as I shall further presently explain. Before I pass to that I must accordingly first define rape.
“Rape is a felony and is defined to be the carnal knowledge of a woman by force and against her will. Force is an essential element of the crime of rape and in order to convict a man of rape a jury must be satisfied beyond a reasonable doubt that the offense was accomplished by force and against the will of the woman, and that there was the utmost reluctance and resistance on her part or that her will was overcome by fear of the defendant or the consequences of her refusal.
“In cases where rape is an issue, then, the jury must believe that the offense was accomplished by force and against the will of the woman; and that there was the utmost reluctance and resistance on her part or that her will was so overcome by fear that she dared not resist. If consent to intercourse is made by the woman through mere lust or weakness of will, without any threat being made or without fear of consequences if she resisted, then the offense would not be rape; but if sexual intercourse is had with a woman and she did not willingly submit to such intercourse but submitted because of threats made against her if she did not yield to such intercourse and through fear and apprehension of dangerous consequences or great bodily harm, and her mind was so overpowered by fear that she did not dare to resist, then the offense would be rape, although she may have made little or no overt physical resistance to such connection.”
The Judge glanced at the clock and went on with our requested instructions, speaking faster. “There is also evidence that later the same evening the deceased may have again assaulted the wife of the defendant with intent to rape her. The statute creating and defining this offense, so far as the same is material here, provides: ‘Any person who shall assault any female with intent to commit the crime of rape, shall be guilty of a felony.’ An assault is defined as an attempt or offer, with force and violence, to do corporal hurt to another. The essential elements of this offense, then, are an assault made with intent to commit the crime of rape. In such cases the jurors must be satisfied, before they could find such an offense, that the man intended to gratify his passions on the person of the woman at all events, notwithstanding her lack of consent and any resistance on her part. Where such an assault has been made with the unlawful intent mentioned in the statute, it is no defense that the man thereafter abandoned or failed to accomplish his purpose.
“If you are satisfied from the circumstances detailed in evidence here that the deceased did later make a further attempt to have sexual intercourse with the defendant’s wife, and that he did this with the intent to accomplish it at all events by his strength and power, against any resistance which might be offered to him, then he would have been guilty of assault with intent to commit rape, no matter whether he actually committed the rape or not.”
The Judge droned on. “There has also been some medical and other testimony here on the subject of whether or not any seminal fluid or male sperm did or could pass from the deceased onto or into the body of the defendant’s wife. In this regard I charge you that the presence of seminal fluid or sperm is not controlling on the question of whether or not the deceased raped the defendant’s wife. Under the legal definition of rape that offense may be complete without the presence of seminal fluid or sperm because any male penetration, however slight or fleeting, is sufficient to constitute rape under our law provided that the intercourse was had against the will and without the consent of the woman. On the other hand the mere presence of seminal fluid or sperm does not of itself necessarily make every sexual intercourse a rape where the intercourse is in fact had with the consent of the woman. Once, however, that the sexual intercourse amounts to rape, as I have defined it, I charge you that it is not necessary that the man reach a sexual climax.”
The Judge sighed heavily and took another drink of water. He had now given thirteen of our requests and if our luck held he should now pass to the right of our man to go and “grab” Barney that night. As the Judge droned on all I would have needed was to watch the spreading grin on Parnell’s face to know that all was well.
“It is claimed here on behalf of the defendant that he left his trailer that night and went to the hotel bar with the intention of apprehending and arresting the deceased. In this connection I charge you that it is the law of this state that a private person—that is, a person who is not a policeman or other peace officer—may make a legal arrest without a warrant when the person to be arrested has actually committed a felony even though such felony did not occur in the presence of the private person seeking to make the arrest.
“Therefore, if you believe here that the deceased did actually commit one or more felonies earlier that night (and in this connection I repeat that rape and assault with intent to rape are both felonies) then the defendant here had the legal right to go and seek to arrest the deceased without a warrant, and this right would apply to the defendant even if he were a perfect stranger to the proceedings here and was no relation whatever to the woman victim in this case.
“A private person may also make an arrest without a warrant on suspicion of a felony, but in such a case he must be prepared to show in justification that a felony actually had been committed, and that any reasonable person, acting without passion or prejudice, would have fairly suspected that the person sought to be arrested had committed it.
“I further charge you that both an officer of the law or a private person may in such cases as outlined above use such force as reasonably seems to him to be necessary in forcibly arresting a felony offender or in
preventing his escape after such an arrest, even to the extent of killing him. He must, however, first announce his purpose to arrest the person he seeks to arrest.”
Claude Dancer stirred and glanced uneasily over my way as the Judge continued. “On the other hand there is no claim here that the defendant actually did arrest the deceased, or announce his purpose to make such an arrest, or that he shot the deceased in order to make such an arrest or to prevent his escape. Rather it is claimed that the defendant here in the meantime became temporarily insane with the fatal results that followed. However, you should carefully consider the foregoing charges I have just given you bearing on the subject of the right of the defendant to arrest the deceased as bearing on the important question of the intent with which he went to the tavern. If he went there with the intent to kill the deceased rather than to arrest him, then, if he were otherwise legally responsible, the offense is murder; but if he went there with the lawful intent to arrest him and not with the intent to kill him, and thereupon became insane as I have defined that term, then you should acquit him.
“While I am on the subject I should also charge you and do, that whatever the intent or motive you should find the defendant possessed when he went to the tavern, and even if you should find that he went there with the unlawful intention of killing the deceased, that if you should further find that he was legally irresponsible at the time the alleged offense was committed, that is, insane, then you should acquit him.”
It was my turn to glance at Claude Dancer as the Judge pressed on about the right of the Lieutenant to carry a gun the night he shot Barney. “There has been some testimony offered and argument made here that the defendant might have been guilty of carrying an unregistered and concealed weapon on the night in question contrary to the law of Michigan. Now it is true that in this state it is required by law that the average citizen register any pistol possessed by him and it is also made a felony for the average citizen to carry a weapon concealed upon his person or elsewhere without first obtaining a license to do so.
Anatomy of a Murder Page 51