Judge Weaver looked down at Mitch's table. “Are there any requests for instructions, gentlemen?” he said.
“No, Your Honor,” Mitch said, rising.
The Judge looked over at me. “Any requests from the defense?”
“Yes, Your Honor,” I said, grabbing up a manila folder and moving up toward the bench. “At this time I hand the court written requests for seventeen instructions which we conceive to properly bear upon the issues in this case.” The Judge looked at me questioningly. “I may add,” I went on, “that they are in all respects identical with certain draft requests submitted to the court earlier.” I walked over to Mitch's table. “At this time I also tender the prosecuting attorney true copies of our requests.”
“Very well, gentlemen,” the Judge said, looking out at the courtroom clock and opening a leather portfolio before him, tilting his head back and peering through the bottoms of his bifocals. He turned to the jury and cleared his throat. “Ladies and gentlemen,” he began, “under our law you are the sole triers of the facts, but I am the sole giver of the law. You will take your law not from the Sunday supplements, not from your favorite cops-and-robbers programs on television, not from the family almanac, not even from the attorneys in this case, but solely from me.
“Embraced in the information filed in this case are three separate offenses,” he went on, “and the law makes it mandatory that the jurors shall be instructed as to the different elements which constitute each offense so that you may determine the grade or degree of crime, if any, which was committed. Murder at common law and as charged in this information, may be defined as where a person of sound memory and discretion, willfully and unlawfully kills any human being against the peace of this state, with malice aforethought, express or implied. This common law definition is still retained in our statute. So if you should come to the conclusion that the respondent is guilty of murder, as I have defined it, it will be your duty to determine whether he is guilty of murder in the first or murder in the second degree, which I shall now explain to you.”
The Judge carefully defined and explained the difference between first and second degree murderâlack 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 âirresistible 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: âIt 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 sayâand to leave it right hereâthat 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 âNot 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.