State v. Crawford

¶1*42The opinion of the court was delivered by

¶2This was a criminal action in which the defendant was prosecuted for murder in the first degree, found guilty thereof, and sentenced to be executed. Three principal questions are raised in the case: First, was the jury legally impanneled? Second, was the charge of the court with reference to insanity, correct? Third, was the sentence correct ?

¶31. Jurors-opinions, etc. I. The first question was settled in the case of The State v. Medlicott, 9 Kas., 257. The question as presented in that case made a much stronger case for the defendant than, it does as presented in this case; and as the opinions of the judges of this court with regard to said question have not changed, it is necessary for us now only to refer to that case.

¶42. Insanity as a denfense. Burden of proof. II. Did the court charge the jury correctly with regard to the question of insanity? The court in substance charged, that it devolved upon the defendant to. prove that he was insane, and that he must do so by a preponderance of the evidence in order to be acquitted. This we think is not the law. We suppose it will be conceded that no crimes can be committed by an insane person; or at least it will be conceded, that no act which is the result of insanity, total or partial, the result of an insane delusion, or the result of an insane uncontrollable impulse, can be denominated a crime. Murder at common law is defined to be “ When a person of sownd memory and discretion unlawfully killeth any reasonable creature in being, and under the king’s peace, with malice prepense or aforethought, either express or implied.” (4 Blackstone Com., 195; 2 Chitty Cr. Law, 724; 3 Coke Inst., 47.) And our statutes have nowhere attempted to change the common-law definition of murder. But they have simply taken murder as defined at common law, and divided it into two or-probably three degrees. (Crimes act, Gen. .Stat., 319, 320, §§ 6, 7, 12.) The fact then of soundness of mind is as much an essential ingredient *43of the crime of murder, as the fact of killing, or malice, or any other fact or ingredient of murder, and should, it would seem, be made out in the same way, by the same party, and by evidence of the same kind and degree, and as conclusive in its character, as is required in making out any other essential fact, ingredient, or element of murder. In every criminal action in this state, “A defendant is presumed to be innocent until the contrary is proved. When there is a reasonable doubt whether his guilt is. satisfactorily shown, he must be acquitted. When there is a reasonable doubt in which of two or more degrees of an offense he is guilty, he may be convicted of the lowest degree only.” This is the statute law of Kansas, (Gen. Stat., 856, crim. code, § 228,) and we suppose will therefore not be controverted. This statute in substance is,, that every defendant is presumed to be innocent of all crime until his guilt is legally shown; that it devolves upon the state to show his guilt; that his guilt must be shown by evidence that will convince the jury beyond a reasonable doubt; and if, upon the whole of the evidence submitted to the jury, there should be a reasonable doubt as to whether his guilt is satisfactorily shown, he must be acquitted. Now, as no insane person can commit a crime it necessarily follows that if the jury have a reasonable doubt of the defendant’s sanity, they must also have a reasonable doubt of his guilt. To doubt his sanity is to doubt his guilt; and to doubt his guilt, (if the doubt be a reasonable one,) is to acquit. The doubt of guilt cannot be of a less degree thap the doubt of sanity; and if the doubt of sanity be a reasonable doubt, the doubt of guilt must also and necessarily be a reasonable doubt.

¶5It has been said that this reasonable doubt goes only to the corpus delicti, the body of the offense. We scarcely know in what sense the words corpus delicti, are here intended to be used. But in whatever sense they may be intended to be used, the proposition is probably erroneous. If it be said that the offense itself, with all its essential ingredients, (and this, in fact, is what constitutes the body of the offense, the corpus delicti,) must be proved beyond a reasonable doubt, but that *44the defendant’s connection therewith, and his capacity to commit the same may be proved by a less degree of evidence, then the proposition is glaringly erroneous. For if the supposed offense be committed by the defendant alone, then, unless he has capacity to commit an offense, no offense is in fact committed. And if it devolves upon the defendant to prove his want of capacity (where possibly a vast amount of evidence is introduced by both parties, and on each side of the question,) by an equilibrium of the evidence, by less than a preponderance of the evidence, then it follows as a logical necessity that the offense itself may be proved by less than a preponderance of the evidence. "With capacity in the perpetrator, a crime is committed. Without capacity, no crime is committed. The capacity is proved by less than a preponderance of the evidence; therefore the crime itself is proved by less than a preponderance of the evidence. The plea of insanity is not in any sense like the plea of confession and avoidance. The defendant does not say by his plea of insanity, “ It is true, I have committed murder as charged in the indictment, but I was insane at the time and therefore should not be punished therefor” — for if he committed murder he could not have been insane; and if he was insane he could not have committed murder. The two things are wholly inconsistent with each other. But the defendant does say by the plea, “I am not guilty of murder at all, nor of any other offense, because I was insane at the time the supposed offense was committed, and was therefore incapable of committing any offense.” Neither is the plea of insanity an affirmative plea on the part of the defendant. It is merely a part of the negative plea of “not guilty.” All evidence of insanity is given under »this negative plea of “not guilty,” and it is given merely in the rebuttal of. the prima facie case that the state must make out of guilt and sanity. The defendant is never required to prove that he is not guilty by proving that he is insane; but the state must always prove that the defendant is guilty by proving that he is sane. It is true that the state is not required in the first instance to introduce evidence to prove sanity, for *45.the law presumes that all persons are sane, and this presump-1 tion of sanity takes the place of evidence in the first instance./, It answers for evidence of sanity on the part of the state. ,-' But if evidence is introduced which tends to shake this presumption, the jury must then consider the same, and its effect upon the main issue of guilty or not guilty, and if upon considering the whole of the evidence introduced on the trial, together with the presumption of sanity, the presumption of innocence, and all other legal presumptions applicable to the case under the evidence, there should be a reasonable doubt as to whether the defendant is sane or insane, he must be acquitted; It is also true that when it is shown on the trial of a case, that the defendant has committed an act which would be criminal if he were sane, and no' evidence of insanity has been introduced, a prima fade case of crime and guilt has been made out by the- state against the defendant. But the ■ law does not in such a case, nor in any case require that the prima fade proof of crime and guilt made out by the state shall prevail unless it shall be overcome by a preponderance of the evidence. The state nearly always makes out a prima fade case of crime and guilt before it closes its evidence in chief and rests its case. But the defendant .is never then bound to rebut this prima fade case by a preponderance o# the evidence. He is required only to raise a reasonable doubt as to his guilt. The burden of proof is always upon the state, and never shifts from the state to the defendant. The making out a prima fade case against the defendant does not shift the burden of proof. With the view that we have taken of this question, considering it to be governed principally by our own statutes) it makes but little difference what the common law was upon the subject, or what sundry courts have supposed it to be; but we would refer however to the following decisions of courts as sustaining the view we have taken: State v. Bartlett, 43 N. H., 224, 228; Hopps v. People, 31 Ill., 385, 393; Chase v. People, 40 Ill., 224, 228; Polk v. State, 19 Ind., 170; Stevens v. State, 31 Ind., 485; People v. Garbutt, 17 Mich., 9, 21; People v. McCawe, 16 N. Y., 58, *4664; Smith v. Commonwealth, 1 Duvall, (Ky.,) 224, 228. And in this connection see Ogletree v. State, 28 Ala., 693; 1 Bish. Cr. Procedure, § 534. With regard to the common law, we suppose it will be conceded that it was a rule of the common law that it devolved upon the state to prove the guilt of a defendant in a criminal action beyond a reasonable doubt. We will also suppose, for the sake of the argument, that said rule had some exceptions, and that proof of insanity was one of them. If so, then our statutes have re-enacted the rule of the common law without the exception, and by so doing the statutes have unquestionably made the rule general, and abolished the exceptions.

¶63. Repeal of status; effect on cases pending. III. Was the sentence correct? The prosecution was commenced under the laws of 1868, while such laws were in Rdl f°rce; aud the sentence was pronounced in accordance with said laws, (Crim. Code, §§ 258, 259, Gen. Stat., 861,) and not in accordance with the laws of 1872, page 336, ch. 166, §§ 1, 2, 3, 4, although the sentence was not pronounced until after the passage of the law of 1872. We perceive no error in this. We know of nothing that will take this case out of the decision made in the case of The State v. Boyle, 10 Kas., 113. There is ñothing in the act of 1872 that expressly shows that it was intended that such act should have a retrospective operation, or that it should apply to proceedings commenced prior to its passage. And if, by giving the act a retrospective operation it would render the act “ ex post faeto, unconstitutional, and void,” as is claimed by the defendant’s counsel, we should hardly presume, in the absence of express provisions so declaring, that the legislature intended that the act should have such an operation. (Shepherd v. People, 25 N. Y., 410.) It is not necessary for us to examine the other questions discussed by counsel.

¶7The judgment of the court below must be reversed, and cause remanded for a new trial and for further proceedings.