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conclusion of and following the testimony the payment of the note that the stock purchas“ adduced by the defendant are tantamount earned dividends with which to pay the to a statement that the defendant, after

same." closing his testimony as set out, had rested ; The court, over the objection of the apat least, this is the natural inference to be pellant, permitted the appellee to introduce drawn from such recitals.

testimony to prove the above allegations. Furthermore, the transcript of the record This was error. It was not competent to esin this case presents "a bill of exceptions” tablish by parol testimony that the considerreciting that "the cause came on for trial ation expressed in the note was to be paid before the Honorable Paul Little, judge pre- only upon condition that the stock, which siding,” showing that the respective parties the note was given to purchase, produced divintroduced their testimony which consisted idends sufficient to pay the same. The note of documentary evidence, oral testimony, and upon its face was a plain promissory note, depositions which are set forth in the bill of for $1,000, payable one year from the date exceptions. The order in which the testimo- thereof, to the payee or his order. Appellee ny was introduced, and by whom introduced, admitted the note was executed and delivered, is shown, and the rulings of the court upon This completed the contract between the parthe evidence and instructions are set forth, ties to it. To permit oral testimony that the followed by a motion for a new trial. Then consideration was to be paid only upon a conthe certificate of the official stenographer that dition precedent was in contravention of the “the above and foregoing is a true and cor- familiar rule which precludes the admission rect transcript of the evidence,” et cetera, of parol evidence to contradict or substanis set forth in the bill of exceptions. This tially vary the legal import of a written inbill was presented by the plaintiff to the strument. Featherston v. Wilson, 4 Ark. presiding judge “for his true bill of excep- 154; Joyner v. Turner, 19 Ark. 690; Borden tions,” all of which, as shown by the certifi. v. Peay, 20 Ark. 304; Roane v. Green & Wilcate of the presiding judge, was “signed by son, 24 Ark. 210; Casteel v. Walker, 40 Ark. him and made a part of the record."

117, 48 Am. Rep. 5; Bishop v. Dillard, 49 A stenographer's certificate as to the cor- Ark, 285, 5 S. W. 341; Richie v. Frazer, 50 rectness of the record of the testimony | Ark. 393, 8 S. W. 143; Tisdale v. Mallett, 73 taken down by 'him, unless approved by the Ark. 431, 84 S. W. 481; Harmon v. Harmon, presiding judge, could not have the effect of 199 S. W. 553—cases cited in appellant's making such evidence a part of the bill of brief. In Harmon v. Harmon, supra, we exceptions, although such certificate may be said: found in the transcript of the record. Beech

"To permit appellant to prove that a plain er v. State, 80 Ark. 600, 97 S. W. 1036. But promissory note, payable under the laws in monwhere it is shown, as here, that the bill of ey, was under the terms of a contemporaneous exceptions contains the certificate of the parol agreement to be paid partly in merchan

dise would be to violate the rule which prohibits stenographer to the effect that the record the production of parol evidence to vary or conkept by him was a true and correct transcript tradict the terms of a written contract. Such is of the evidence, and the bill of exceptions the effect of the decisions of this court and of

the authorities generally.” recites that it was “presented to, approved, and signed by the trial judge," then such The doctrine of the above cases is applicacertificate thus approved by the trial judge ble to the facts of this record. Counsel for does warrant the conclusion that the evi- the appellee rely upon a line of cases which dence thus brought into the bill of excep- hold that, where a contract was executed and tions was all the evidence adduced at the delivered upon condition that it was not to trial. In Leggett v. Grimmett, supra, Chief | take effect until another event should take Justice English, speaking for the court, says: place, as between parties to such a contract

"It is not expressly stated in the bill of ex- the same is not enforceable until the conceptions that it contains all of the evidence in- tingency happens which, according to the introduced at the trial, but such is to be inferred tent of the parties, renders the contract bindfrom its general tenor."

ing. Ware v. Allen, 128 U. S. 590, 9 Sup. Ct. [2] 2. The appellee admitted in his answer 174, 32 L. Ed. 563; Burke v. Du Laney, 153 that he signed and delivered the note sued U. S. 228, 14 Sup. Ct. 816, 38 L. Ed. 698; on, but he set up:

Graham v. Remmel, 76 Ark. 140, 88 S. W. "That for services rendered companies in 899, 6 Ann. Cas. 167. In these latter cases holder, Abbott offered and insisted that Kenne- that there was to be no binding contract at which s. H. Abbott was the principal stock- it was the understanding between the parties dy have an additional $1,000 stock in the Ft. Smith Refrigerator Company, which would car- all when the same was executed and handed ry with it $2,500 stock in Copeman Electric over to the payee or obligee and was not to Stove Company; that it was agreed by and become so until a certain event took place. between S. H. Abbott and defendant that in the event the Ft. Smith Refrigerator Company and But in the case at bar the appellee admitted the Copeman Electric Stove Company failed to that the contract took effect and was compay dividends sufficient to pay said note that pleted at the time of the delivery, and he undemand would not be made for the payment of dertook to show by parol testimony that it the same; that the note was executed as a conditional obligation payable only from the divi- was to be paid only in the event the dividends; that it was a condition precedent for dends earned from the stock were sufficient

to pay the consideration. In Gorrell v. Home Henry & Harris, of Monticello, for appelLife Ins. Co., 63 Fed. 371, 377, 11 C. C. A. lant. Jno. D. Arbuckle, Atty. Gen., and T. 240, 246, it is said :

W. Campbell, Asst. Atty. Gen., for the State. "The proof proposed here was of an agreement inconsistent with the writing, which in itself is

WOOD, J. A little before midnight on complete and unambiguous. The written promise to pay is absolute. By the proposed proof Wednesday August 15, 1917, Clarence Hanthat promise would have been nullified, and the kins shot and killed his wife, Willie Bob note converted into an agreement that the sum Hankins, who at the time was staying at named should be paid out of accruing commis- the home of her mother, Mrs. Symantha sions, and not otherwise. The case is clearly distinguishable from Burke v. Dulaney, 153 U. Simmons, in the town of Monticello, Drew S. 228, 14 Sup. Ct. 816, 38 L. Ed. 698, where county, Ark. He was indicted for the crime evidence was admitted to show a parol agree of murder in the first degree, was tried, ment that a note should not become operative as a note until the maker could examine the prop- convicted, and sentenced to imprisonment erty for which it was given. That attack was for life in the state penitentiary, and he apupon the delivery, and not, as in this case, upon peals to this court. the meaning of the terms of a note, of the delivery of which no question has been made either

The killing was admitted, and appellant in the pleadings or proofs."

set up the defense of insanity. The testiThe above is exceedingly apposite to the mony adduced on behalf of the state tended facts of this record. Since the appellee in to show that about a month prior to the his answer and proof tenders no issue that killing appellant and his wife "had not been would be a good defense to the note, the is getting along well.” She had gone to the sue as to whether appellant be an innocent home of her mother because of his mistreatholder passes out.

ment of her. On Tuesday night before the The judgment is therefore reversed, and killing he went to the home of his motherjudgment will be rendered here in favor of in-law, so she testifies, and "seemed as kind appellant for the sum of $1,000, with inter- and friendly as he had been at any time.” est, as shown on the face of the note.

He had two small children. His wife and children went to bed about 7:30 p. m. Clarence went out on the gallery and sat a while,

then went in and played on the organ a HANKINS v. STATE. (No. 70.) while, then went out on the gallery and (Supreme Court of Arkansas. Dec. 22, 1917.) smoked a cigarette, then went and got some 1. HOMICIDE 294(1) INSANITY – SUFFI- water, then went back on the gallery and sat CIENCY OF EVIDENCE.

awhile. Then he went into his wife's room, In a homicide prosecution evidence regarding accused's nervous condition and erratic bewaked her up and began to fuss with her, havior, especially after separating from his He then went out in the yard. His wife wife, held sufficient basis for insanity instruc- said that he was going home to stay, but di. tions.

rectly he came back and asked for his shoes. 2. CRIMINAL LAW Cm740 PROVINCE OF His wife said, “Clarence, I ought to take COURT AND JURY-INSANITY.

In a criminal case the jury should determine a chair and knock you over the head." He whether accused was afflicted with a mental dis- replied, “Willie Bob, if you put as much as ease, but it is a question of law whether the the weight of your hand on me, I will kill mental disease renders him legally irresponsible. you." The next night he came back and en3. HOMICIDE 27-INSANITY-ELEMENTS.

In a murder trial insanity is not a defense tered the house through the back way, asked unless accused was insanely incapable of know- Mrs. Simmons how much he owed her for ing the nature of his act, or if he did know it, board, and told her he was going away. that he was insanely incapable of realizing he when she informed him how much he owed, was doing wrong, or, finally, if there was an irresistible impulse to do the act, although accus- he made no reply, but went across the hall ed realized its nature and knew it to be wrong. into the room where his wife and babies 4. HOMICIDE em 291(1)-INSTRUCTION-SUFFI- were sleeping. His wife got up and went in

In a murder trial refusing to modify an in- to the hall. He told her he was going away. struction that accused's delusions regarding his When they got on the gallery, she said, wife's relations with other men no de- "Clarence, why did you go off and talk about fense, by the qualification that, if the delusions me?" He said, “Willie Bob, I did not do it." resulted in an irresistibly insane impulse, de- She said, “You did talk about me to two or fendant would be excused, held erroneous. 5. CRIMINAL LAW m486_EVIDENCE-ADMIS

three.” He said, “It's a lie; I did not talk SIBILITY.

about you.” In just a little while a pistol In a murder trial testimony of nonexperts shot was heard, and she said, “Oh, Clarence regarding accused's insanity is inadmissible has killed me!" He then ran off. Mrs. Simwhen the opinions were based on facts not stated.

mons stated she saw no cause for his leav

ing her house on Tuesday night. He came Appeal from Circuit Court, Drew County ; out on the porch as usual and talked with Turner Butler, Judge.

her the same as he always had. Clarence Hankins was convicted of mur- Two or three witnesses testified that on der, and he appeals. Reversed and re- Wednesday night a short time before the manded.

killing appellant was trying to borrow a

CIENCY.

was

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

gun, and stated that he was going to a cer- timately and had had an opportunity to obtain place, and did not know . but that he serve him closely testified that after his first would have trouble; that he was going to separation from his wife he seemed very leave for a little while, and it might blow nervous and absent-minded, neglected his over. One of them let appellant have his work, and tried to avoid people. He could pistol. Another testified that he had a con- not remember anything, and made a good versation with appellant Wednesday morn- many mistakes in his work. ing. Appellant said that on Monday night It was shown that there was considerable after he and his wife had been in bed awhile talk around the mill about his wife and anhis wife got up and went out, and a little other man. His sister testified that he worwhile afterwards he got up and went out. ried a great deal about his trouble, and got He found his wife out there about the lot, to where he could not attend to his work. and there was a man out there, who came “He would not notice us. He was like he across the branch towards the barn. Clar- was in a dream or something." ence said he ought to shoot him, but thought Another witness, who had known him for it was best to go away. This witness testi- twelve years, and had worked with him fied on cross-examination that he had known pretty near all that time at the mill, stated the appellant for eight years, and had been that he noticed a great change in the apworking with him for four or five years; pearance of appellant before the killing. that within the last month before the killing “He seemed to be in powerful low spirits.” he had noticed a change in appellant's dis- Monday night preceding the killing witness position, his appearance, and actions. “He met the appellant, and he did not notice witwas inattentive and seemed like something ness nor speak to him. He did not seem to was bearing on his mind."

realize who witness was or that he was any Appellant told another witness on Wednes- one at all. This caused witness to say to day, before the killing that night, about sep- bimself, “Old boy, you're all in; just about arating from his wife the night before, and ready for the asylum.” said he was going to leave, and talked as Appellant's brother-in-law, who had grown though he wanted to injure her some way. up with him, testified that from the time of This witness saw appellant in jail the next the first separation it seemed that appelday, and appellant then said to witness that lant's head "was giving way on him right he was sorry for what he had done and wish- along, and he did not seem in a normal state ed he had done what witness had advised him of mind at all." He came to witness' house to do, saying that if he had he would not have three or four hours after the homicide and been in the trouble he was then in. He was in an awful fix. He said, "Don't let no remarked that “they were liable to break bunch get hold of me." He was muddy up his neck, but that death was short that way, to his knees and did not have on any hat. and would be that quick,” snapping his fin- They carried him to town and turned him ger. In the conversation he said that he was over to the jailer, and when he was searched leaving his wife on account of some a small vial of chloroform was found in his being there. The witness who had this con- pocket. versation was a brother-in-law to appellant, Another sister testified that the morning and stated that the talk about his wife had before the killing he came to her house and been worrying appellant a whole lot.

acted very peculiarly; did not speak a word, On behalf of the appellant the testimony but went through all the drawers of her butended to show that his reputation for peace reau, which caused her to remark to her and quiet was good. One witness, who had husband that she "believed he was going known appellant all his life, stated that crazy.” She "firmly believed that he was about thirteen years before appellant stayed losing his mind.” at her house about three or four months, One of the witnesses testified that he had during which time he was struck by light- known the appellant ten or fifteen years ; ning, which rendered him unconscious eight that the morning before the killing the apor ten minutes. After that he could not pellant came to witness' store and told him work in the sun at all, and did not seem he was going to Hampton to deliver some like the same boy.

goods and collect for some goods for an inAnother witness, sister-in-law, had stallment house. Witness said something to known him about three years, and had lived appellant about working at the mill. Appel. in the same house with him for nearly a lant said he had not worked there for two year, and had worked in the mill with him. months. He told witness how he ran the She stated that she noticed a difference in installment business. There was no reason the way he worked after his first separation for him to tell this to witness if he wus not from his wife, which occurred about three or working for an installment house. four weeks before the killing. After the sep- Another witness stated that some time bearation he would often quit his work for fore the killing "he would work on a loom hours and just stare around the shop. She half a day; did not know what he was dothought he was insane.

ing; seemed addled.” Several witnesses who had known him in- The mother of appellant testified that

201 S.W.-53

one

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She ity."

when he was about four years old he had law of murder as applied to the facts from
choking sensations, and that he was never the state's viewpoint of the evidence. The
normal in his life; that after he was struck court in several of its instructions also de-
by lightning he never could work in the sun clared the law applicable to the defense of
any more, and had bad spells of nervous | insanity as disclosed by the testimony ad-
prostration. He and his wife got along well duced by the appellant. Among other in-
after they were married until the separation. structions the court gave the following:
"He loved his wife too much, and finally “(24) The court instructs the jury that, even
went crazy about it." There was a great the defendant was suffering from a delusion that

though you should believe from the evidence that deal of insanity in the family of witness. his wife was too friendly with other men, and Nine members of the family were crazy. that defendant acted upon this delusion when he The night before the killing appellant came fired the fatal shot, yet this delusion would not to witness' house nearly wild. He said, "My justify the defendant in taking the life of his

wife, nor excuse him from criminal responsibilGod, she is guilty, so help me God." tried to put him to sleep, but he would not

The appellant objected specifically to the go to bed. She put her arms about him and giving of the above instruction, and requesttried to hold him down on the sofa, but he led the court to modify the same by adding would lie awhile and start to get up. At

the following: length witness dropped off to sleep, and

"Unless you further find from a preponderance when she awoke appellant was gone and the of the evidence that the defendant at the time of door was wide open.

the act was under such a defect of reason from The jailer testified that when appellant disease of the mind as not to know the nature

and quality of the act he was doing, or, if he was received at the jail he seemed as a child did know it, that he did not know he was doing and had to be dealt with as such. He fell what was wrong, or if he knew the nature and asleep and slept all that day and all that quality of the act and knew that it was wrong, night and part of the next day; did not that he was under such duress of mental disease

as to be unable because of the disease to resist wake up even when it was raining. Since the doing of the wrong act, which was the rethat time his physical and mental condition sult solely of his mental disease.” had improved, and the jailer did not consid

[1] The facts of this record present a proper him to be an insane man.

er case for the application of the law of inDr. Stanley M. Gates had been treating sanity as announced by this court in the the appellant about five months before he recent case of Bell v. State, 120 Ark, 535, killed his wife. Appellant thought he had 553-555, 180 S. W. 186. In that case we relung trouble. Appellant was mistaken about viewed the previous decisions of our this. The doctor circumcised him, and he court and the authorities generally upon the did not even flinch while the operation was subject, and endeavored to announce going on. Appellant said that life was a cinctly and clearly the legal rules or tests hell to him, and that he did not care for that should be applied, according to the facts anything. He was in a very bad condition in any case, by which the jury should be physically and was very nervous. The doc- guided in considering the evidence in order tor visited him after he was put in jail. He to determine whether the accused is responwas also very nervous then. He would talk sible for the crime charged where his only disconnectedly, and his jaws worked pecu- | defense is that of insanity. liarly. The doctor, after qualifying as an In Bolling v. State, 54 Ark. 588, 601, 602, alienist, testified that in his opinion the 603, 16 S. W. 658, 662, we approved the rules appellant was suffering from paranoia, and in McNaghten's Case, 10 Clark & F. Reps. stated the symptoms (which he described) 199, to wit: indicated that he was so afflicted. He gave "That to establish a defense on the ground of it as his opinion that the appellant at times insanity it must be proved by a preponderance did not know the difference between right the act the accused was under such defect of

of the evidence that at the time of committing and wrong, and did not realize the conse

reason, from disease of the mind, as not to know quences of his act when he shot and killed the nature and quality of the act that he was his wife. It was the opinion of the expert doing, or, if he did know it, that he did not

know that he was doing wrong." that appellant felt justified in doing the act, and in his opinion appellant was still insane.

And the further rule, to wit: Three witnesses who were not experts and

"That if the defendant labors under a partial

delusion only, and is in other respects sane, he who had had no intimate acquaintance or

must be considered in the same situation a. association with appellant were permitted to responsibility as if the fact with respec; to state, over the objection of appellant, that which the delusion exists were real." they were with him or saw him at a show on In approving these rules of MeNaghten's the night of the killing and there was noth- Case the court did not hold that the doctrine ing in his conduct to indicate that he was of irresistible impulse caused by disease of insane. This testimony was elicited in re- the mind would not be a good defense in cassponse to a leading question as to whether/es where the evidence adduced warranted it. there was anything in his conduct or ap- In Bolling v. State, supra, the court was pearance that indicated that he was insane. of the opinion that the evidence did not

The court gave correct instructions on the I warrant an instruction on irresistible im

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pulse, and gave this as one of the reasons 1 The Supreme Court of New Hampshire why the ruling of the trial court was correct wholly repudiates the McNaghten rules. Inin refusing prayers for instructions on that deed, that court goes to the extreme view of subject, and as a further reason this court holding that no legal rules or tests should be held that the offered prayers on that subject declared by the court as a guide to the jury made no distinction between the irresist in determining whether or not the defense of ible impulse arising out of mere passion or insanity, in any given case, should avail the revenge and impulse when the product of a accused. The doctrine of the New Hampdiseased mind.

shire cases is that insanity is a disease of Now it seems to us, en passant, that this the mind; that an act which results from a court, in Bolling v. State, supra, did not disease of the mind is not criminal; that have the correct view of the evidence on the whether or not a person accused of crime is issue of irresistible impulse; for the testi- afflicted with a mental disease, and whether mony tended to prove that Bolling was af- or not the crime was the result of such disflicted with paranoia or delusional insanity ease, and whether the will of the accused, which had progressed to the stage of suspi- by reason of a disease of the mind, was cion and persecution, in which stage the hom- overcome by an impulse which he could not icide tendency or mania is most pronounced. resist, are all questions of fact; that the Wharton & Stillé, p. 828, § 1031 b, p. 1035. entire question of responsibility where the But, be this as it may, the point we wish to defense is insanity is one of fact to be substress here is that the comments of this mitted to the jury; that the jury should be court in passing upon the prayers for in- told that the only issue for it to determine structions in Bolling v. State show that the is whether the killing was the offspring or court had in mind and did not intend to ig. product of mental disease; and that their nore the doctrine that irresistible impulse verdict should be guilty or not guilty, acis a defense to a charge of murder when such cording as they find that fact to be. State v. impulse is the product of a diseased mind. Jones, 50 N. H. 369, 398, 399, 9 Am. Rep.

That this court in that case did not intend 242; State v. Pike, 49 N. H. 399, 442, 6 Am. to ignore or overrule the doctrine of irre- Rep. 533. sistible impulse is further shown by the fact In the latter case the court concludes its that this court, in Williams v. State, 50 Ark. discussion of the McNaghten rules, and the 511, 9 S. W. 5, had held that, where one “in decisions of the courts approving them, as consequence of insanity is rendered unable follows: to control his actions by the great excite "The whole difficulty is that courts have unment or distress which prayed upon his mind dertaken to declare that to be law which is a at the time the act charged was done,” he matter of fact. The principles of the law were

maintained at the trial of the present case, is not responsible for such act. Judges when, experts having testified as usual that neiCockrill and Battle made the opinion in Wil- ther knowledge nor delusion is the test, the court liai V. State, supra, which was about two instructed the jury that all tests of mental disyears before the decision in Bolling v. State, ease are purely matters of fact, and that, if the

homicide was the offspring or product of mental supra. The same great judges took part in disease in the defendant, he was not guilty by the latter decision, and we may be sure that, reason of insanity." if the court had intended by approving the

In Parsons v. State, 81 Ala. 577, 595, 2 rules in McNaghten's Case to ignore or to South. 854, 865 (60 Am. Rep. 192), the court announce any doctrine contrary to the doc

says: trine in Williams v. State, supra, Judge Hem

“The rule in McNaghten Case, as decided by ingway, who voiced the opinion of the court the English judges and supposed to have been in Bolling v. State, supra, would have so adopted by the court, is that the defense of instated in express terms.

sane delusion can be allowed to prevail in a We have reached the conclusion, therefore, facts would, if real, justify or excuse the act.

criminal case only when the imaginary state of that this court, by approving the rules sub- *

It holds a partially insane person as stantially of McNaghten's Case in Bolling v. responsible as if he were entirely sane, and it State, supra, did not intend to enunciate any ignores the possibility of crime being committed rule that was in conflict with the doctrine ing upon a human mind, the integrity of which

under the duress of an insane delusion, operatthat, when a homicide is committed through is destroyed or impaired by disease, except, per an irresistible impulse which is the result haps, in cases where the imaginary state of solely of the disease of the brain, the person facts, if real, would excuse or justify the act

done under their influence." committing the homicide under such duress of mental disease is excused. In coming to

The decisions in these cases are by exceedthis conclusion we are not unmindful of the ingly able courts, and all the opinions are to fact that the rules of McNaghten's Case have becommended for their vast research and been severely criticized as being unsound great learning. The opinions of the New generally and in conflict with the above doc- Hampshire and Alabama courts, for the most trine. Inasmuch as we approved these rules part, are in harmony with the views exin Bolling v. State, supra, without comment, pressed by many physicians in their treatises it may be well to note here and briefly review on medical jurisprudence of insanity. Ray, the criticisms made upon these rules and Medical Jurisprudence of Insanity, p. 43, 8 then give our reasons for approving the rules. 27 et seq.; Dr. James Hendrie Lloyd on In

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