People v. Burgess

Henry V. Whitlock was a farmer, fifty-eight years of age, living in the town of Victory, in the county of Cayuga, with his wife Catherine, who was about thirty-seven years of age. The defendant, a strong, powerful man, of arbout the same age as Mrs. Whitlock, was in their employ as a hired man, working upon the farm. He lived with them, eating at the same table and sleeping in a room upstairs, whilst Whitlock and his wife occupied a bedroom on the ground floor. The residence was upon the west side of a road running north and south, and the barns were upon the

On the 6th day of August, 1895, Whitlock and the defendant liad been engaged in harvesting oats. After supper the defendant took the horses to the pasture, some distance from the house, and Whitlock separated the young cattle from the milch cows, putting the young cattle in the pasture and retaining the milch cows in the lane. He fed them some sowed corn, after which he went into the house, removed his boots and sat down with his wife in the dining room. After a while the defendant passed through the room, on his way to his bedroom, stopping to look at a pair of gloves at the request of Whitlock, which his wife had cleaned for him that day. Shortly after the defendant had passed to his room, Whitlock and wife retired and went to sleep. At about ten o’clock, or shortly thereafter, they were awakened by the defendant, from the outside of their bedroom window, which was at the time open, having a screen in it, calling to Whitlock,' saying, “Henry, there is a couple of cows in the corn.” Whitlock and his wife at once-arose, Mrs. Whitlock lighting a lamp, whilst he put on his clothes, lighted a lantern and started out, she returning to her bed. In the roadway they were met by a neighbor, who saluted the defendant, who was in advance of Whitlock, with the word “ hello,” and passed on, the defendant replying with the same expression. Mrs. Whitlock remained lying upon the bed, watching the light of the lamp, which was in the dining room. Within a very few minutes after her husband had left the house, the light suddenly went out, leaving the house in darkness. Hearing no noise, and thinking that her husband had left the door open and that the light had been extinguished by a gust of wind, she arose, passed through the doorway of her bedroom, and was at once seized by the defendant, who had returned to the house and divested himself of his clothing, with the exception of his shirt. She screamed, and he asked her what was the matter.

The examination which was made by the neighbors shortly afterwards disclosed the body of Whitlock, lying inside of the barway by the side of the fence. It lay upon its back, legs and arms out straight, with an axe and hat but a few feet away. In the back of the head was a deep gash, penetrating through the skull and brain. There was a pool of blood under the bars, and they were spattered with blood and brain tissue. The upper and lower bars were in place. The central bar was broken down in the center. The ground descended toward the roadway, and blood had run down the wheel tracks into the roadway, doubtless washed there by the rain which had fallen during the intervening time.

An examination of the cornfield showed that no cows had been in the corn. About nine days before the homicide the defendant, in conversation with a neighbor by the name of Secor, and in the presence of his brother in-law, Walker, spoke of his liking Mr. and Mrs. Whitlock very much, and said that he “ would like to sleep with her one night, and if I could I would be willing to roll in my grave.”

After leaving Mrs. Whitlock on the night of the homicide, the defendant went to the barn of an acquaintance for whom he had formerly worked, buried himself in the hay mow, and there remained until the evening of the eighth, when he made his presence known seeking food and water; and he was shortly thereafter placed under arrest.

We have thus given a brief summary of the evidence produced in behalf of the People, none of which is controverted. It amply justifies the finding that the defendant lured the deceased from his bed chamber under the false pretense that the cows were in the corn ; that he proceeded in advance of him through the banvay where the central bar was broken and where it was necessary to stoop in order to pass between the upper and the lower bars; that there, with an axe secured for the purpose, he struck the fatal blow as Whitlock was

The defense interposed was that of insanity. It is claimed that he was suffering from the disease knoAvn as larval epilepsy. The evidence tends to sIioav that in his boyhood days he >vas rather quiet and retiring, caring but little for the company of other boys and frequently refusing to join Avith them in their j>lays; but he Avould occasionally join them, at which times he would play Avith great vigor and Avith some harshness. From early infancy he appears to have been troubled with Avalking and talking in his sleep, from Avhich he would awake uttering a sudden scream. At other times he would walk or run about, the house, screeching or mumbling to himself, Avith staring eyes. For a number of years he lived with his grandparents, who on such occasions often aroused him by the application of cold Avater. At times his limbs and body would twitch and tremble. He had seasons of depression, when he would sit for hours holding his head upon his hands, heedless of the conversation addressed to him. He occasionally had headaches, and at one time was caught in the act of self-abuse. When between nine and ten years of age he avbs struck a LIoav on the head Avith a hammer by his little brother, who was four or tive years of age. Later on he fell from a horse, striking on his head and shoulders, which rendered him unconscious for a time. When twelve years of age he arose one night, hitched a horse to his grandfather’s sleigh and drove to his mother’s, about four miles away, Avhere he arrived about four o’clock in the morning. He helloed and aAvakened his mother; she called him to come in, but he remained sitting in the sleigh until she went out, shook him and brought him in. He had on his trousers, his grandfather’s boots, his grandfather’s overcoat and one mitten. He was nearly frozen and avbs so wild and excited after he was taken into the house that a physician was sent for. Whether he had been asleep during the entire journey, or how long he had remained

It appears that his mother was fifty-nine years of age; that she was once a nurse living in the west, and that, in 1883 or 1884, she was taken sick in Iowa and was removed by the public authorities to the poor farm of Lucas county, where she was cared for for some time. During this period she would tell her family troubles in a serious manner and suddenly break into a laugh, or bite her lips; she picked at her clothing and hair, would look wild and then suddenly turn away and become hilarious. She was, doubtless, disordered in her mind at this time, but subsequently recovered. She returned east and was a witness upon the trial of this action.

Four doctors, including Doctor Sefton and Doctor McDonald, who were both medical experts upon diseases of the mind, gave it as tlieir opinion that he was insane and not responsible for his acts. On the other hand, many of his neighbors and acquaintances for years were placed upon the stand and testified that they never saw anything about his conduct which impressed them as irrational, and an equal number of physi

It is quite evident that this man’s intellect was of a low order and that he did not possess a well-balanced mind. That his disposition was disagreeable and his meditations far from pure we do not doubt. Had he possessed a strong, vigorous, well-balanced mind, this crime would not have been committed; such a person would have controlled his passions and would not have yielded to desires involving acts of such cruelty and disgust. It, however, is a fact, disclosed by our criminal records, that a large percentage of the crimes of this character is committed through motives similar to those which actuated the defendant in this case. It is not every weak or disordered mind that is excused from the consequences of crime. It is only those who, at the time of committing the criminal act, were laboring under such a defect of reason as either not to know the nature and quality of the act they were doing or not to know that the act was wrong. (Penal Code, section 21.)

The evidence presented a question which it was the duty of the court to submit to the jury. It was the province of that tribunal to weigh and consider it in all its bearings and to determine the mental condition of the accused. That determination has been made. We have carefully read and considered the evidence, and our conclusion is, that the evidence is of such a character that we ought not to interfere with the verdict rendered.

This defendant, as we have seen, was physically a strong, healthy man. He was shown to be a good farm laborer. He lured the deceased from hishouse on through the barway, where he had preceded him with axe in hand, standing ready to deliver the fatal blow as soon as the head of his victim should bow under the bars. He appears to have known perfectly what he was doing and to have remembered the transaction; for he subsequently returned to the frightened wife and told her what he had done and how he had done it; and when she tried to persuade him to let her go and see if she could not do something to save her husband, he told her it was of no use,

With reference to insanity being hereditary in his family"; it was doubtless true that his mother was disordered in mind during the period hereinbefore alluded to. There is, however, no evidence in the case showing that she was disordered at a former or subsequent period. She was not shown to have suffered from epilepsy or any of the disorders similar to those which it is claimed were traceable in the defendant. It occurred at a period in her life in which an affection of the mind in females is not uncommon.

Before entering upon the impaneling of the jurors, the defendant interposed a challenge to the original and the additional panel of jurors drawn for that term, upon the ground that the sheriff had intentionally omitted to summon certain of the jurors, naming them, who had been drawn to attend that term of court. Also, upon the ground that the drawing of the jurors by the clerk did not take place more than fourteen days before the day appointed for that term of court, and that notices of such drawing were not published by the clerk six days before the day designated. The district attorney denied the challenge interposed, and thereupon the court entered upon a trial of the questions presented, from which it appeared that the drawing of the jurors by the county clerk took place on the second day of March; that the notice was published for two weeks successively, commencing on the 12th day of February, 1896 ; that the court was appointed for the 16th day of March, and that the sheriff had summoned the jurors drawn to attend at that term of court by mailing a notice thereof to them, inclosing a card to be signed and returned, admitting service of the notice.

The proceedings for the formation of a trial jury in criminal

The Code of Criminal Procedure, section 362, provides that “ a challenge to the panel can be founded only on a material departure, to the prejudice of the defendant, from the forms prescribed by the Code of Civil Procedure, in respect to the drawing and return of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn.”

Was the drawing of the panel of jurors within the time prescribed by the Code? As we have seen, the panel was drawn on the second day of March for a term of court appointed to be held on the sixteenth day of March. If, in counting the time, we could exclude the day upon which the drawing took place and count the day upon which the court was appointed, it is evident that the drawing would have been in time. But section 1042 of the Code of Civil Procedure provides that “ on a day designated by the county clerk, not less than fourteen nor more than twenty days before the day appointed for holding each trial term, * * * the clerk of the county in which the term is to be held * * * must draw the names of thirty-six persons, * * * to serve as trial jurors at the term.” It will be observed that, under the provisions of this section, the drawing must be not less than fourteen days before the day appointed for the term of court. That day, therefore, must be excluded in the counting. It thus remains to be seen whether the day upon which the drawing took place can be counted.

Section 788 of the Code of Civil Procedure was repealed by chapter 677 of the Laws of 1892, and that chapter, known as the “ Statutory Construction Law,” was substituted in its place. Section 27, among other things, provides that “a number of days specified as a period from a certain day, within which or after or before which an act is authorized or required to be done means such number of calendar days exclusive of the calendar day from which the reckoning is made. * * * In computing any specified number of days, weeks or months from a specified event, the day upon which

There is some conflict in the courts below with reference to the construction of this chapter. (Connecticut National Bank v. Bayles, 17 App. Div. 596 , criticising Aultman & Taylor Co. v. Syme, 91 Hun, 632 .) The latter case was appealed to this court, but the appeal was dismissed ( 148 N. Y. 755 ) for the reason that we did not deem the order appealable or the question here presented properly raised for our determination.

Our examination of the Statutory Construction Act discloses no intention on the part of the legislature to materially change the existing rule for the computation of time, except, perhaps, to more definitely fix the event from which the count is to be made.

It will be observed, upon referring to the statute, that the day to be excluded in making the reckoning is the day of the specified event, from which the days, weeks or months are to be counted. In this case the specified event from which the count is to be made is the day appointed for the commencement of the term of court. It will be remembered that the drawing must take place not less than fourteen days before the day appointed for the holding of the term, so it is from that day that the fourteen days are to be counted. That day, under the construction act, must, therefore, be the day excluded; and, in making the count back from that time, the day on which the required act was performed, we think, may properly be included. It follows that the challenge of the panel was properly overruled.

An exception was taken to the testimony of a witness to the effect that a certain spot indicated by him upon the lantern used on the night of the homicide was blood. He testified that he saw the lantern on the night or morning in question ; had his attention called to it at that time, and that then the blood was fresh. He did not undertake to state whether it was human blood or not. We think the ruling of the court

A number of exceptions were taken to the testimony, in which the defendant was spoken of as being intoxicated on a certain occasion, and in which, on various occasions, his acts were spoken of by witnesses as impressing them as rational. These questions we do not deem it necessary to discuss in detail. All of the questions raised by the exceptions referred to have very recently been considered by us in the cases of People v. Strait ( 148 N. Y. 566 ) and People v. Youngs ( 151 N. Y. 210 ). The rulings made were in accordance with the rule recognized in those cases, and are sustained by them.

The only serious exception to which our attention has been called appears in the testimony of the witnesses Baker and Meade, in which they were permitted to contradict the testimony of the defendant’s wife, to the effect that she never told either of the witnesses Baker or Meade that she never knew of any insanity on the part of any member of her husband’s family. The difficulty with this evidence is that it was called out by the People, and not by the defendant. In her direct examination her attention had been directed to the condition of her husband, and no mention had been made of the condition of any member of his family. The district attorney, therefore, in proceeding to examine her with reference to her statements as to the condition of her husband’s family, entered upon a new field, making her his own witness; the defendant was not responsible for or bound by such statements, and the district attorney could not properly lay the foundation for contradicting her upon that subject. We, therefore, concede the incompetency of this evidence. But was there such an error as to require a new trial ?

In the first place, the evidence of Baker was objected to “ as incompetent, upon the grounds before stated.” The grounds before stated were, first, that the witness was the wife

Under section 542 of the Code of Criminal Procedure, we are required to give judgment without regard to technical errors or defects, which do not affect the substantial rights of the parties. There is no claim or pretense that there was insanity on the part of any member of the defendant’s family other than his mother. The evidence with reference to her condition was not in any manner controverted. It came from witnesses residing in the west, so far as we can learn, entirely impartial, and it became the duty of the court and the jurors to consider her condition as established by the testimony of the witnesses. The defendant’s wife lived in ¡Rhode Island ; the sickness of his mother occurred in the state of Iowa. It is not pretended that she ever had any personal knowledge of the condition of her mother-in-law. We are, therefore, of the opinion that no harm resulted to the defendant from the testimony in question.

The judgment of conviction should be affirmed.

All concur, except Gray, J., absent.

Judgment affirmed.