THE PUNISHMENT FOR CRIMINAL IMBECILES
In the foregoing chapters we have discussed the problem involved in these
murders from the standpoint of the law in order to show that even under
the law, as it now exists, such persons are not guilty of murder in the
first degree. In the present chapter, we propose to discuss the matter
from another standpoint and from a different angle. It is not now a
question of responsibility or of some kind of justice to be satisfied. Let
us face the practical question of what is to be done in these cases.
After all, what we want is protection for society. We cannot have innocent
people killed in accordance with the whim of the irresponsible. These
imbeciles have killed innocent members of society. What shall the living
do to prevent these particular persons from repeating the crime and to
prevent other imbeciles from ever committing such a crime? This, of
course, involves the whole problem of punishment or the treatment of the
wrongdoer. Upon one thing everybody is agreed--we must make it impossible
for these persons ever to do such a deed again. The surest way to
accomplish this is to destroy them. Dead men commit no crimes. Society
feels safe when a desperado is killed. If we can agree upon this solution,
the problem is easily solved and further discussion is unnecessary. But
society is not at one on this question. We are already seriously debating
the question whether any wrongdoer should ever be officially executed.
Indeed, many States have already decided that they should not be, and
imprisonment for life has replaced capital punishment.
It is somewhat difficult to draw a line of distinction between the persons
involved in these crimes and the so-called responsible murderers. It
certainly is no great loss to society if Tronson is put out of the way.
The same is true in varying degrees of Gianini and Pennington. It may be
very successfully argued that the matter of responsibility is a fiction
and that all persons should be treated alike, either all executed or none
executed. Nevertheless, at the present time, we do draw the distinction,
and many feel that the person who has full power over his action, who
knows the nature and quality and wrongfulness of his act, should be
executed, while those who do not know should not be executed.
If we take the latter view, the question still remains, What shall be done
with these criminal imbeciles? The alternative to capital punishment is
incarceration for life. Here at least we find a distinction between these
persons and the normal intelligent wrongdoers. Of all persons in the
world, the criminal imbecile should be placed in custody under conditions
that will forever make it impossible for him to repeat his offense. The
man who commits murder in a fit of insanity may recover from his insanity
and be a useful citizen for the rest of his life. The man who commits
murder under a strong impulse of anger or in calm meditation as the result
of perverted reasoning may recover normal reasoning and be a useful
citizen. This is not true of the imbecile. He will never recover; he will
never have more mind than he has now; he will never be free from the
danger of following the suggestion of some wicked person or of yielding to
his own inborn and uncontrolled impulses. It will never be safe for him to
be at large. This is so obvious that it is highly probable that the
imbecile once committed to life custody would never be released, and even
that there would never be any attempt at such release. When these facts
are understood, the public will undoubtedly be satisfied to have such
persons imprisoned for life or committed to an institution for mental
defectives, where they will be constantly guarded and prevented from doing
injury.
This was well brought out in the case of at least two of the persons
described in this book. In the case of Jean Gianini, the lawyer made
emphatically plain that there was no desire on the part of the defense to
procure the complete liberty of the defendant. John F. McIntyre, the
counsel, stated clearly to the jury that he had no desire except to save
the boy from the electric chair, a punishment which he considered unjust.
He even went so far as to state that if at any time in the future efforts
should be made to secure the release of this defendant from any
institution to which he might be committed, he himself would make as
strenuous an effort to have the boy kept in custody as he was now making
to save him from the electric chair. Apparently this made a deep
impression upon the jury and went a long way toward helping them to return
the verdict that they did. On the other hand, in the case of Roland
Pennington this point was not made so clear, and the jury and the
prosecution did not realize that the defense only wished to save the boy
from execution and would be quite content with a verdict that would
result in his being incarcerated for life. An institution for
feeble-minded would seem at first glance to be the logical place to which
such a person should be committed. But no one need seriously object to
commitment to a penitentiary or a state prison. Perhaps, in view of the
fact that an imbecile has committed crime, that he has, as one may say,
begun a habit in that direction, the state prison is the proper place for
him, because here he can be absolutely controlled and saved from any
future acts of this kind. This is precisely what happened in Tronson's
case.
We are learning in these days that the old adage, "An ounce of prevention
is worth a pound of cure," is something more than a witticism. These are
days of prevention--in medicine and in morals. The most important part of
our problem is yet to be discussed. It is true we must come to some
decision as to what is to be done with these persons who now infest
society and who, because of their imbecility which is unrecognized, may
become criminals. But vastly more important, because more far-reaching, is
the problem of how to prevent imbeciles from becoming criminals. We may
save the Gianinis and the Tronsons and the Penningtons from murdering any
more people, but how much better if we save them from killing anybody. No
one of these persons had, probably, any more instinct to kill than have
you or I. As children in years they were harmless and innocent. They could
have been cared for and led into paths of harmlessness if not of
usefulness. All of them could have been recognized as mental defectives
long before they arrived at the age when they committed crime. As dull and
backward children at school, they were at once suspicious characters.
Attention was called to them. Careful examination, such as is now
possible, would have revealed the fact that they were mental defectives
and as mental defectives were potential criminals. Then was the time that
they should have been carefully guarded and watched and saved from an
environment that would lead them to prey upon their fellows. If we wish to
save our teachers from the possibility of being murdered by their pupils
or our daughters from being killed by their wooers or business men from
being struck down by the blows of feeble-minded boys, we must be on the
watch for symptoms of feeble-mindedness in our school children. When such
symptoms are discovered, we must watch and guard such persons as carefully
as we do cases of leprosy or any other malignant disease. For fear that
some one should feel that these are rare and exceptional cases, let us
remind the reader that the best estimate and the result of the most
careful studies indicate that somewhere in the neighborhood of 50 per cent
of all criminals are feeble-minded. Whether this holds for murderers is
indeed not known. But many persons acquainted with feeble-mindedness
recognize from the newspaper descriptions of murders that many of the
murderers are feeble-minded.
These facts certainly warrant us in taking seriously the problem of the
feeble-minded and the criminal imbecile.
One thing more. Careful studies have shown beyond the peradventure of
doubt that at least two thirds of these mental defectives have inherited
their defect; in other words, that they belong to strains of the human
family whose intelligence lies below that which is required for the
performance of their duties as citizens. This points to a further
precaution necessary in looking toward the ultimate prevention of
feeble-mindedness and the solution of a large part of our prison problem,
and that is the prevention of the further propagation of this race of
defectives. If it is true--and there is every evidence that it is--that
children are daily being born of such a mentality that it requires the
attention and thought of an army of normal people to prevent their
growing up into criminal lives and that all of the best efforts can never
make them able to take their place in society as useful citizens, then it
certainly is our duty to see that such children are not born. How this is
to be accomplished has not yet been worked out in detail. The colonization
and segregation of all such people in institutions where they will not be
allowed to propagate is one solution that is proposed. The other is by
surgical interference, to render such people physically incapable of
propagating. Probably both these methods and still others must be utilized
to help solve this problem.
The intelligence of men is often measured by the amount of foresight that
they have. The little child has little or none, as is also true of men of
low intelligence. There are men who can look forward and plan their
affairs for a few months in the future, others who can look forward a few
years, still others a lifetime, and a few who can look forward into the
coming generations. We shall demonstrate a high degree of intelligence if
we look not only to the amelioration of present conditions in our
prisons--which _must_ be done; not only to the removal to more suitable
environment of those persons who are unjustly confined because of their
irresponsibility--which ought to be done; if we not only see to it that
from now on persons who come before the court, either juvenile or adult,
are first studied to discover whether they are mentally responsible or
not, which is of utmost importance; but if we go still farther and put
forth efforts to determine how many and which of the children who are in
the public schools to-day are mentally defective and therefore need care;
and going still farther, if we have studies made and laws passed that
shall, as soon as possible, lead to the reduction in the birthrate of
these mentally defective individuals. A certain amount of
feeble-mindedness we must expect to have with us for long years to come,
because there will be sporadic cases and cases due to accident. But
feeble-mindedness as related to crime may be exterminated in a few
generations if we will but use our intelligence to attack this problem at
its root.
APPENDIX A
GIANINI CASE
HYPOTHETICAL QUESTION PROPOUNDED BY THE DEFENSE
Assuming the following circumstances to have been established by the
evidence in this case:--
That the defendant was on the 5th of December, 1897, born in the City of
New York; that his father was Charles A. Gianini, who also was born in
said city, and the paternal grandfather of the defendant was born in the
said city and the paternal great-grandfather of the defendant was born on
the south slope of the Alps in the republic of Switzerland.
The defendant's mother was born in the City of New York, her maiden name
being Sara Cecelia McVey. That the defendant's mother was married to his
father when she was about twenty years of age; that prior or previous to
the said marriage she was bright, vivacious, stylish, and accomplished in
music; that shortly after her marriage she began to become untidy in her
appearance, morose, depressed, and indifferent.
At the time of the birth of the first child (Charles), to-wit, on the 13th
day of November, 1891, about eleven months after her marriage, she was
suffering from melancholia as the evidence in this case discloses.
Assuming that the child, Charles, lived to be but seven years of age and
during his lifetime did not learn to speak, but merely made guttural
sounds; that he did not walk, but moved about when seated on the floor,
pushing himself sidewise, and finally shortly before his death tottered
about. His death occurred when he was about seven years old. That he ate
gluttonously and his death was due to asphyxiation, choking due to taking
in trachea foreign matter while vomiting contents of an overloaded
stomach.
Assuming that after the birth of Charles his mother's melancholia
continued, she became indifferent to her child, took no care of him, and
said that while she wanted to die, she was going to live forever; that she
also said she thought that her face was black and that she was a negress,
that she would not go into the street because she was black.
Assuming, too, that she became addicted to the use of liquor, first lager
beer and subsequently whisky and brandy; that she made pledges,
administered by priests, only to be broken. That at times she would
brighten up, and during one of these periods, namely, July 12, 1894, a
second child, called Catherine, was born, which child still lives.
Assuming that thereafter she began to drink again more than before; that
for eight months preceding the birth of the defendant she was drunk a
great many times, that she was found in a drunken stupor, that she was
brought home in a drunken condition by detectives, on which occasion she
had with her her second child Catherine. That about six months before the
birth of this defendant his mother was drunk, that the seventh month
before the birth of this defendant she was drinking, and on one occasion
threw her husband's books out of the window on an adjoining roof, during a
rain storm. And in the eighth month before the defendant's birth she drank
and the same condition prevailed.
Assuming that from the June before the defendant was born, which was on
December 5, 1897, she was attended by Dr. Charles N. Weeks of New York
City, and he found her depressed, morose, and in a melancholic condition
most of the time, at times hysterical; that she would refuse to talk to
him, for one half a day at a time; that she would refuse to answer
questions, that she would pay no attention to questions, and that she was
also inclined to stare right past him; that she would weep; that she paid
no attention at all. At times the pupils of her eyes were dilated, at
times contracted, their expression at times was wild and sometimes vacant.
These conditions continued during the time Dr. Weeks was treating her. He
prescribed bromide for her liquor and the same condition continued after
the birth of the defendant.
The general appearance of the defendant's mother was untidy, and these
conditions remained unchanged after defendant's birth. That when born the
defendant was poorly nourished, under weight, weighed about five pounds,
and was inclined to be emaciated; that at the time of the death of the
first born (Charlie), to-wit, on the 21st day of March, 1899, she was
again observed by Dr. Weeks, and then she was absolutely indifferent as to
the conditions so far as the boy was concerned; showed no grief, and her
general condition was such as he described at the time he was treating
her.
And assuming that after the birth of the defendant he was a bottle-fed
baby, not nursed by his mother, and when about a year old placed in the
care of Mrs. Leigh, with whom he remained until he was about six years
old. That the defendant's mother died on June 3, 1899, in a Sanitarium,
known as St. Anne's Retreat in the City of New York, the cause of death
was meningitis, alcoholic heart failure.
Assume that up to the time the defendant was five years of age he didn't
speak, and made sounds which resembled yells. Assume that about 1906 or
1907 the defendant's father took him from Mrs. Leigh's, he was then able
to talk and walk, and for several weeks he was taken care of by Mrs.
Hoberg and from there was taken to Lady Cliff Academy on the Hudson, where
he remained for one term. While there he usually appeared dirty, but
seemed to be making some progress.
In 1907, assume when the defendant was ten years of age he went to live in
the Bronx, where he lived for two years and attended school during this
period. At one time he took two little girls to a piece of woods and
started to take their clothes off, and when asked why he did it, said he
was going to play Indian and that Indians were naked.
On one Sunday afternoon he was observed in a group of children eating mud
pies, and the children were calling him "Loonie" and were telling him to
eat another one.
During these two years that the defendant lived in the Bronx he was
observed to tease children. He would take a little boy's wagon and run
away with it. He would take his hat and throw it over a neighboring
fence. He would take the caps of girls and toss them over fences, pull
their curls, take away their hoops when they were rolling hoops, and take
the ball away when they were playing ball. He would do these things quite
often. On one afternoon he was brought home with a gash on his right
temple. It was bleeding and at least one inch in length. He stated that he
had received it from a fall from a stone wall while he was playing
"thief." On another occasion he chased a young girl who was stopping at
the house around the room with a table knife because she was trying to
correct him because he ran home from school without her. He did not
attempt anything against that girl again, although she remained in the
room the balance of the day.
In 1910 defendant's father moved from the Bronx, to Poland, and brought
the defendant with him, and the defendant attended the Poland School which
he entered in April of 1910, and there remained until February or March,
1913. After leaving school defendant worked in a knitting mill in Newport
from about the first half of April until the second half of May, 1913,
when he ran away and went to Ilion. At Ilion he was found working by his
father and Mr. Frank Newman wiping dishes in the hotel. He was then taken
home. In the middle of August, 1913, the defendant again ran away, this
time to Albany, and stated that while he was there he had been shot at two
or three times by a policeman and was arrested. From Albany the defendant
again went to Ilion, where his father and Frank Newman again found him at
the same hotel, and when he saw them, he said that they were "swindlers."
At another time the defendant ran away to Herkimer, in the summer of 1912,
and he stated that he had gone to the moving pictures. He said that he
went to the store, the Poland Union, and bought a can of beans and a bunch
of bananas for his trip to Herkimer. He left in the afternoon and did not
return until the following afternoon, when he said that he ate the bananas
going along the track before he ate the beans because he was afraid the
bananas would melt. He said he ate the beans at night, opening the can
with a nail, and ate them with a nail.
On another occasion in Poland he chased his sister with a table knife
although she had not done anything to him. In the summer of 1910 the
defendant was at Morehouseville, and one day while there he was fishing at
the stream that passes in front of the Mountain Home, when the flies and
the punkies were biting very fiercely. He stood down there in his bare
legs and bare head fishing and the flies biting him until the blood ran
down his face and neck and legs. He was fishing there for fully an hour,
and when asked if the flies had bothered him, he said "No."
In 1911, when the defendant's father's stepmother was in Poland, the
defendant was overheard to say to her, "Why didn't you marry my father, I
would like you better than this stepmother."
When the defendant was fifteen years of age, in the month of September,
1913, the defendant's father had him committed to the St. Vincent's
Industrial School for juvenile delinquency, presided over by Christian
Brothers, where he remained for about six months, coming home in February.
A few weeks before the commission of the alleged crime, he was observed to
be quarreling on Main Street in Poland with two very small children.
At the age of sixteen years, in the early part of March, 1914, the
defendant was noticed playing with a toy railroad car and building some
tracks with some little irregular pieces of wood. He was also observed to
play tag with children apparently from two to four years younger than
himself.
In the early part of 1912, the defendant's father observed that he was
practicing masturbation.
The defendant's father thereupon slept in the same room with him in order
to watch him. The defendant continued this practice until the time he left
home in the spring or summer of 1913 and admitted that he did it
frequently.
Assuming that on the 25th day of March, 1914, Mrs. Ethel Beecher and the
deceased Lida Beecher met the defendant at the Post Office in Poland, and
the defendant asked the deceased when she was coming to see his father,
and that she replied that she did not know, and the defendant said,
speaking impatiently, "Aw, I don't believe that you intend to come at all;
you will wait until the summer time and go home and then it will be too
late." That they spoke about school, and the deceased said to the
defendant that it would be better for him to wait until the beginning of
another term because he would be behind the other pupils in his work; that
on another occasion, on about the middle of February, 1914, the defendant
came on an errand to get yeast to the place where the deceased and Mrs.
Beecher were boarding and the defendant then said to them that he wanted
to get away from Poland, and would rather be in New York in the Great
White Way; that he thought he would like to act in moving pictures as he
did not like his home and he hated his father, and would not care to be a
"sod-buster"; that the deceased asked him whether he would like to return
to school, and he said that he would, but that his father would not let
him; that he never stole but once in his life and that was twenty-five
cents from a lady in New York, and she had given him twenty-five cents to
buy some candy and he bought the candy and ate it himself. On the same
visit the defendant asked Mrs. Ethel Beecher if there was a state prison
in Rochester, and she told him no; he wanted to know if there was not some
sort of a reform school there. She said that there used to be, but that
the reform school had removed to Industry, and he asked what the reform
school was like at Industry and she told him that the boys lived in
cottages under the care of a matron, a man and wife generally, and that
was as much as she knew about it. The defendant said he would like to be
there and asked her about the state prison at Auburn and different
prisons, what the sentence was and whether they had an electric chair or
whether they hung. The defendant told them that they worked awfully hard
at Sing Sing. The defendant also stated on that occasion that his father
used to thrash him for stealing apples that other men put him up to
stealing.
Assuming at the time Mrs. Ethel Beecher and the deceased and the defendant
were talking together, that the deceased told the defendant that she
thought he would like to go in the country to work on a farm and asked him
why he did not continue his school work another year; and that her tone
was kindly and her whole deportment towards him on that occasion was such
as to incline one to believe that she desired to help him and to well
advise him; and that the defendant's conversation concerning prisons and
industrial schools was such that it caused them to laugh, at the time; and
that on other occasions when the defendant was with the deceased her
conduct towards him was always kindly and that she was kindly and
generously disposed towards the defendant and showed considerable interest
in him.
Assuming that on the 27th day of March, 1914, at about quarter after seven
the defendant was observed on the street in Poland with some children,
with whom he had been seen at different times playing hide and seek and
tag and I spy, and that he caught hold of the toque of one of the little
girls and pulled it down over her face and that he poked another one of
the little girls in the back and that he called a girl by the name of
Grace Palmer, "Palmer House," and said, "Leonard is the proprietor, isn't
he?" and kept calling her Palmer House, and that he was snowballing the
girls, and that while he was engaged the deceased passed him on the street
and said, "Hello, Jean," and that he then joined her and shortly
afterwards was seen to come back with the deceased, going up the road
towards Buck Hill. That later in the same evening, at about ten minutes to
eight, he returned home, showing no trace of excitement or nervousness,
and that he received some books of wall paper to be delivered to a
neighbor and that he took these books and threw them so that they fell
with a noise on a neighbor's veranda and was seen running near the
railroad station and later returned home in the vicinity of eight o'clock,
showing no trace of any agitation, excitement, or nervousness. That he
took off his shoes, put on a pair of slippers, went to bed, and slept
quietly all night. That on the following morning he reported for work at
Sam Hutchinson's as usual, worked for about twenty minutes doing his
chores, ate his breakfast, and nothing unusual was observed about him.
Assuming further that he was seen going along the railroad track in the
direction of Newport; that he met two men, one by the name of Smith, and
that he shouted, "Hello, Smithy"; that later he was spoken to by a man
named Sweet at Newport on the railroad track about four miles from Poland,
and that when Sweet caught up to him and asked him where he was going, he
said to Herkimer to see a moving picture show; that he had stolen a dollar
from his father; that he accompanied Sweet to Autenrith's store and while
there the murder of the deceased was talked about in his presence and that
he ate peanuts and smoked a cigarette and asked where they had found the
body and stated that he had gone to school to her; and subsequently was
taken back to Poland by one Frank Newman, and thereafter was turned over
to the Sheriff of Herkimer County and one of his deputies.
Assuming that on the 26th day of March he asked an acquaintance by the
name of Morris Howe, a boy of fifteen years, if the deceased came to get
her mail nights, and said that he would get even with her; that on
Tuesday, March 24th, he told a man by the name of Estes Compo, with whom
he was working, that the deceased had tried to send him to school and that
if he had a revolver he would kill her, and asked this same man if he had
read of a murder down South, of a colored man killing a white girl and
laying it on the superintendent of a factory and that the man was
sentenced to the chair and the colored man confessed the crime; that on
the preceding night he had been in Compo's room, where he saw a revolver
and a knife, and on the following day he said if he had a revolver, he
would kill the deceased; that about a week before the 27th day of March,
while defendant was working for Sam Hutchinson, he told a boy he would
some day put an end to the deceased.
Assuming that between the hours of seven and eight o'clock on the night of
March 27th, 1914, Miss Beecher was killed at a dark and lonely spot on the
Buck Hill road and that she had come to her death by being struck on the
head with a monkey wrench and had been cut repeatedly to the extent of
about 24 times with a knife in various parts of the body and that she was
dragged from the place where she was killed to a clump of willows near the
road and that her umbrella and hat were found the following morning in the
road and that by following the track where her body had been dragged over
the snow the body of the deceased was found.
And assuming that on the morning of the 28th day when the defendant was
brought to Poland he was taken to a house of a Justice of the Peace and
was taken into a room by the Deputy Sheriff and told that he was
suspected and was accused of being a party to the crime. That after he was
completely stripped of his clothing he stated to the Deputy Sheriff that
he had gone to school to the deceased and had trouble with her at school
and wanted revenge and that he had met her the day before near the Post
Office and asked her to go up to his house and see his folks about having
him go to school again, and that the deceased told him that she would go
the next night. That the next night he did meet her near the hotel and she
said that she was ready to go up. They walked up the street, and when they
got near his father's house, the defendant told her that his father did
not live there, that they had moved up the hill, that he then stated in
detail how he committed the crime and disposed of the body and what he did
with the wrench and the knife. That he said, "You would not think any one
could do a job as quick as that." He said he supposed they would talk
insanity, but he was not any more insane than the Deputy Sheriff was, and
he did not want them to talk about it.
He also said, "Gillette got the chair, didn't he?" and upon the Deputy
Sheriff replying, "Yes," the defendant said, "He had no reason to kill the
girl, but I did; I wanted revenge."
That at the same time the defendant signed a sworn statement before the
Justice of the Peace, in which he stated that he went to school to Lida
Beecher, and had trouble with her and wanted revenge; that he was not
afraid, and when he got home, he was just as happy as he ever was, and did
not think anything about it, as he thought he had revenge; that at the
time he made these statements he was cool and quiet and spoke connectedly;
that he was not nervous or excited.
Assuming that the defendant had not attended the Poland school since
February or March, 1913, and that while there he had studied under the
deceased for about one year, and that during this period the only
punishment he had received from the deceased was a seat facing the wall
with his back towards the other pupils, and was occasionally sent upstairs
to the Professor of the school for punishment. And that the deceased had
always manifested a friendly interest in him, was mild, kind, gentle, and
good to him.
And further assume that when he left school, he was in the sixth grade.
Assume that he had frequently been detected in telling lies, that he had
spoken of hatred of his father, that he manifested no affection towards
him, referring to his father as "Old Man" and "Him." That on the morning
of the 28th when he was being brought back to Poland by Newman, Newman
stated to him, "You have got something beside skipping out now staring you
in the face," to which he replied, "They can't give me but ten years"; he
used no words, when informed it might be a long time, that expressed fear
or fright; and when he was informed that he had murder staring him in the
face, he acted no different than ordinary.
That less than a year before the birth of Charles, the first child, the
defendant's mother suffered from an attack of diphtheria, for which she
was treated by Dr. Quinlan.
Further assume that in the summer of 1910, at Morehouseville, while
quarreling with a little boy named Arthur Jones, the defendant said he
would go up to his father's room and get his hunting knife and kill him.
That while the defendant was at St. Vincent's Industrial School for
juvenile delinquency, at work in the laundry, he told Mr. Minor that if
his father didn't get him out in February, he would burn his father's
buildings when he got out.
Now, doctor, assuming all these facts to have been proven in this case,
from your experience in the treatment of and knowledge of imbeciles and
idiots, from your skill and expert knowledge, can you express an opinion
concerning the mental condition of Jean Gianini at the time of the killing
of Lida Beecher, on the 27th day of March, 1914?
By Mr. Thomas: If the Court please, I object to the question as improper
in form and that it concludes with assuming all these facts to have been
proven in this case, and that it is not an inquiry which can be properly
permitted to be put to the witness here. That, in addition, it does not
correctly state the evidence, and that especially this part of the
question is improper--"That she showed no grief, and her general condition
was such as he described at the time he was treating her," referring to
Dr. Weeks, and further it assumes incorrectly the time that the defendant
encountered Miss Beecher, near the Post Office on the 27th day of March,
1914, which is stated here to be about a quarter after seven.
By Mr. Hirsch: What time do you say it was, Mr. Thomas?
By Mr. Thomas: The proof varies from seven to seven six. And it is
incorrect in assuming facts not established upon the evidence, that he cut
her repeatedly to the extent of about twenty-four times with a knife; and
in those respects to which I have called your Honor's attention, the
question is improper, in that it assumes facts not proven, that it is
improper in form, and the concluding paragraph, with reference to which I
have called your Honor's attention, is improper and incompetent; and that
the question is incompetent in that it does not call upon the witness to
express an opinion as to the knowledge of the defendant of right and
wrong, or his knowledge of the nature and quality of the act in killing
the deceased.
By Mr. McIntyre: That is a question, if your Honor please, which was
passed upon yesterday.
By the Court: I suppose it is preliminary to some extent, as far as this
information is concerned.
By Mr. McIntyre: It is precisely the same as yesterday, but the question
has had some additions.
By the Court: Was that indicated by the last part of it?
By Mr. McIntyre: Yes, sir.
By Mr. Thomas: He should be asked, "Can you now form an opinion assuming
all these facts?"...
_Q._ Now, Doctor, assuming all these facts contained in the hypothetical
question to have been established by evidence in this case, from your
experience in the treatment and knowledge of imbeciles and idiots, from
your knowledge and skill as an expert, can you express an opinion as to
the condition of Jean Gianini at the time of the killing of Lida Beecher
on the 27th day of March, 1914?
Same objection
By the Court: Objection overruled. He may answer.
_A._ I can.
_Q._ What is your opinion?
Same objection.
By the Court: I think it should conform now to the language of the
statute, shouldn't it?
By Mr. McIntyre: Well, I have, your Honor; I first asked him if he could
express that opinion. Now if he doesn't express an opinion that comes
within the provisions within the statute, why then of course his opinion
is incompetent in this case. Now let's look at the code. Will you give me
the section, please?