daily capital jocrxai - salkm, orkgox, sattrday, October 28, 1011.
OREGOtl SUPREME
Fill Text FibUshed b, Coirteir of
Supreme
state t. Hnsslnir, Multnomah County.
Decided October 17, 1911.
State of Oregon, respondent, v. J.
. Y. Hassing, appellant Appeal
from the circuit court for Multnomah
county. The Hon. J. P. Kavanaugh,
judge. Argued and submitted Oct. 10,
1911. John A. Jeffrey and (Chas. E.
Lenon, on brief k for appellant Jos.
Page, deputy district attorney, and
(Geo. J. Cameron, district attorney,
and J. J- Fitzgerald, deputy, on brief)
for respondent. McBride, J. Affirmed.
Defendant was convicted or the ;
crime of mifrder in the first degree, I mary of the history of certain mem
committed upon the person of Edith bers of the Hassing family, compiled
Hjssius, m air. i ue ucieuac, oo iir ai tijr irom ue records of the asy
as disclosed by this appeal, was in- lum, partly from Journals of the fam
sanity.
The defense offered In evidence a
communication from the chief alienist
of the public Insane hospital near
Aarhus, Denmark, which appears to be
a reply to an official letter of inquiry
from the ministry of foreign affairs
of Denmark. This communication
states that it is disclosed, from the
records of the asylums and from the
journals of the Hassing family, who
had been placed there, supplemented
with details from certain relatives of
the Hassings, that certain relatives of
defendant, both in the direct and col
lateral line, had been lnsano and con
fined In the asylum. The names and
family history of these persons, com
piled from the above sources, are
given in the communication. It has
indorsed upon it the words: "Legal
ized. The Ministry of Foreign Affairs.
Copenhagen, January 27, 1911. For
the Minister, H. A. Bernhoft," with
the seal of state attached. Acconi-
panylng this document Is a certift- ciusive presumption that a person
cate of the Danish minister to the i having sufficient mentality to know
Vnited States, which Is as follows: I that an act is wrongful and unlawful
"It is hereby certified that in Den-1 Is capable of governing his conduct
mark registers of birth, marriage and by that knowledge, and of resisting
death are kept by pastors of the Dan-; any impulse to violate the law.
ish Lutheran church, who are state I The only case in which our law
officers; that transcripts of parish recognizes any Irresistible Impulse to
registers serve as certificates of birth, kill Is In Sec. 1897 L. 0. L., which
marriage and death; that the insane provides: "If any person shall, wlth-
asylum near the city of Aarhus is a out malice, express or implied, and
state institution, and that the chief I without deliberation, upon a sudden
alienist is keeper of asylum records. ! heat of passion, caused by a provo-
It is finally certified that legalization cation apparently sufficient to make
made by the Danish ministry of for- the passion irresistible, voluntarily
elgn affairs cover the genuineness of kill another, such person shall be
the document legalized and prove that deemed guilty of manslaughter." This
such document originates from the Phase of the case was fully presented
proper Danish authority. I to the Jury in the general charge, and
"C. MOLTKE, , I" so presenting it the court was quite
"Minister of Denmark to the United 88 favorable to the defendant as the
States. , evidence warranted, since in this case
"Washington, D. C, March 8, 1911." ; there was no sudden heat of passion
And also a certificate of P. C. Knox. ' and no provocation. Briefly, the evi
secretary of state-, as to the official . dence disclosed that defendant for
character of the Danish minister. The some time before the killing had
state objected to the introduction of beaten and abused his wife, and, in
these documents and they were ex- ne instance, driven her from home;
eluded. This ruling Is assigned as that he had been arrested for threat
error, i ening to kill her, and upon his prom-
To rebut certain evidence offered lse to leave her alone had been al
by defendant as to his insanity, the lowed his liberty; that, upon her re
state called Fred Nicholson, who tes- fusal to again live with him, he wait
tifled that he became acquainted with el at a dark corner and after she had
defendant about two weeks before the fallen In an attempt to escape from
shooting; that he was with him about blm, shot her to death and afterwards
three times a week for two weeks expressed satisfaction at the deed. The
and talked with him on all kinds of selection of the place, the instrument
subjects; that, at his suggestion, he and the time to consummate the act
came twice with him to the court showed deliberation and premedita
house to listen to murder trials where tion, and a knowledge of Its wrong
the defense was insanity; that In his fulness. Independent of the statute,
judgment he was sane. The state also weight of authority is against i!'.e
called J. C. Tally, jailer, who had doctrine that a defense of an irreslt.
been in charge of the prisoner for Ible impulse to kill can be upheld :n
nearly four months. He testified that any case where there exists sufficient
defendant did not act differently from mentality to know the wrongfulness
other prisoners and expressed the and unlawfulness of the ,-ct.
opinion that he was sane. The ad- In Flanagan v. Pe-iple. 52 N. Y. 467,
mission of this testimony Is also as- the court, speaklnp of the doctrine of
signed as error- "irresistible impulse." say: "The a
The court was requested by defen- gument proceeds upon the theory that
dant's counsel to give the following there is a form of Insanity in which
instructions, both of which were re- the faculties are so disordered and
fused: deranged that a man, though he per-
"You are instructed that before you ceives the moral quality of Ills act9,
can find the accused guilty you must I9 unable to control them, and Is urged
find from the evidence and beyond a hy some mysterious pressure to the
reasonable doubt, that he had suffl- commission of acts, the consequences
cient mental capacity to distinguish ot which he anticipates but cannot
between right and wrong as applied avoid. Whatever medical or scientific
to the act he was about to commit, authority there may be for this view,
if he did commit it, and sufficient It has not been accepted by courts of
capacity to be conscious that the said Iaw- The vagueness and uncertainty
act was wrong and at the same time " tie inquiry wnlch would be o;
sufficlent will power and self-control ened, and the manifest danger of In
to restrain himself from the commis- troduclng the limitation claimed into
slon of such act, and unless you so the rule of responsibility, in cases of
find beyond a reasonable doubt in crime, may well cause courts to iVe
this case, you must find the defendant before assenting to It. Indulgence in
not guilty." evl1 passions weakens the restraining
"You are Instructed that In order to power of the will and conscience; and
convict a person of a crime, he must the rule suggested would be the cover
have a memory and Intelligence for the commiseion of crime and its
enough to know that the act he is Justification. The doctrine that a
about to commit is wrong, to remem- criminal act may be excused upon the
ber and understand and to know if notion o' an irresistible impulse to
he commits the acts he will be sub- commit it, where the offender has the
Ject to punishment and reason and abi'tty to discover his legal and moral
will be sufficinet to enable to compare duty in respect to it, has no place in
and choose between the supposed ad- the law."
vantage and gratification so obtained, In State v. Knight, 95 Me. 467, the
by the criminal act and the immunity court in an exhaustive opinion repu
from punishment which he will secure dlate the theory of an irresistible lm
by refraining from it and having so Ptse associated with a capacity to
contemplated the act, the will and discern right from wrong and quote
controlling power to restrain himself with approval from Dr. Hammond as
frjm committing it, and unless you follows: "Although not a test of In
(ind that all these elements concurred stnity. the knowiedn? of right and
In the commission of the act alleged wrong is a test of responsibility.
by the defendant, if he did commit it, Any individual having the capacity to
you must not find him guiltv." know that an act which he contem-
The refusal to give these instruc- plates is contrary to law, should be
Hons is assigned as error. deemed legally responsible and should
MeBrIde, J. There was no error in suffer punishment. He possesses what
the ruling of the court, rejecting the Is cale!d by Bain punishable.
communication of the chief alienist of The only forms of insanity which, in
the Insane asylum to the Danish mln- my opinion, should absolve from re
istry .of foreign affairs. Section 766 sponslbllity are such a degree of
I- 0. L. requires that as foreign docu- idiocy, dementia, or mania as prevents
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COURT DECISIONS
I, A. Tuner, Reporter of the
Court.
ments shall be proved "by the orig
inal or by a copy certified by the
legal keeper thereof, together with a
certificate under the great or prin
cipal seal of the country or sovereign
thereof, that the document is a valid
and subsisting document of such
country, and that the copy is duly
certified by the officer having the
legal custdy of such original."
Xo such certificate appears upon the
copy offered in evidence nor does the
communication purport to be a copy
of any original document hut Bnm.
ily, ana partly from oral statements
of members of the family. It was
clearly inadmissible.
The Instructions requested were
properly refused. They present the
"Irresistible Impulse" doctrine at its
very worst, and entirely ignore the
difference between an impulse to kill,
arising from mental disease or from
"sudden and sufficient provocation,"
and one which springs from anger
or a wicked and furious desire for
revenge. Whatever may be the rule
in other jurisdictions, we are of the
opinion that the test of Insanity in
this jurisdiction Is the capacity to
distinguish bteween right and wrong
Sec. 2408 L. 0. L. Is as follows: "A
morbid propensity to commit prohib
ited acts, existing in the mind of a
person, who is not shown to have been
Incapable of knowing the wronfgul
ness of such acts, forms no defense to
a prosecution therefor." The Intent
of this statute is to establish a co'
r 4
4
j the Individual from understanding the
consequences or bis act, and the ex
istence of a delusion in regard to a
matter of fact which, if true, would
Justify his act"
, In People v. Holn, 62 Calif. 120, the
court, quoting from Baron Bramwell,
say: "'But If an influence be so dow-
lerful as to be Irresistible, so much
the more reason Is there why we
should not withdraw any of the safe
guards tending to counteract it There
I are three powerful restraints exist
jing. all tending to the assistance of
I the person who Is suffering under
I such an influence the restraint of
j religion, the restraint of conscience,
the restraint of law. But if the ln
I fluence itself be held to be a legal
j excuse, rendering the crime dispun
ishable, you at once withdraw a most
powerful restraint that forbidding
and punishing Its perpetuation'. We
must, therefore, return to the simple
question you have to determine did
the prisoner know the nature of the
act he was doing; and did he know
he was doing "what was wrong." In
conclusion the court say: "Whatever
may be the abstract truth, the law
has never recognized an Impulse as
uncontrollable which yet leaves the
reasoning powers Including the ca
pacity to appreciate the nature and
quality of the particular act unaf
fected by mental disease. No dif
ferent rule has been adopted by Amer
ican courts."
The power to discriminate between
right and wrong, as a test of crim
inal responsibility, has been adopted
by a large majority of the courts of
the United States, including Oregon:
State v. Murray, 11 Or. 413; People
v. Hoin, supra; Mackin v. State, 59
X. J. L. 495; State v. Miller. Ill Mo.
542; Ford v. State. 73 Miss. 734; State
v. Mcintosh, 39 S. C. 97; Wilcox v.
State, 94 Tenn. 106; Flanagan v. Peo
ple, supra; State v. Mowry. 37 Kan.
369; State v. Knight, supra; Davis v.
State, 44 Fla. 32.
The foregoing list does not by any
means exhaust the authorities holding
to the theory that a knowledge of
right and wrong as to the particular
act charged Is the proper test of legal
responsibility. On the other hand a
few courts have admitted with some
reservation the theory that an uncon
trollable impulse, superinduced by
mental disease, even though accom
panied by capacity to distinguish be
tween right and wrong. Is a defense
to crime. Dr. Maudsley, an eloquent
champion of this theory, remarks:
"There is a destiny made for a man
by his ancestors and no one can elude,
were he able to attempt It, the tyranny
of his organization." It is submitted
that these writers and the Judges
who have adopted their opinions, have
dealt with man's moral responsibility
as between his. creator and himself,
rather than his legal responsibility
as a member of organized society. It
ought to be plain that If every case
tried should involve an investigation
of the defendant's ancestry and en
vironment with a view to determine
to what extent these Influenced the
free and untrammeled action of his
will, and how far. In view of these,
he was morally responsible for his
acts, the Investigation would be In
terminable. While one of the Inci
dental objects of the law is to reform
offenders, where they are reformable,
Its principal object Is to protect so
ciety and the only practicable- work
ing theory upon which It can proceed
Is to assume that every man who
knows right from wrong can observe
the right and avoid the wrong.
The last assignment to be consid
ered was the admission of the testi
mony of the witnesses Nicholson and
Tally, the first of whom had seen him
very frequently for a period of two
weeks before the crime and talked
with him on a great variety of sub
jects, and on two occasions, at his
request, had accompanied him to the
court house to listen to criminal tri
als, while the latter had been his
jailer for about four months. Subdi
vision 10 or Sec. 727 L. O. L. permits
an "Intimate acquaintance" to give his
opinion respecting the mental sanity
of a person, the reasons for such
opinion being given. As there are
degrees of Intimacy, the term Is some
what Indefinite, but it should cer
tainly extend far enough to enable the
witness to know something of the
habits, temperament and general men
tal characteristics of the party whose
sanity Is in question. Being an Indef
inite term, the admission of such tes
timony Is largely in the discretion of
the trial court, and we are of the
opinion that the testimony admitted
is within the rule announced in State
v. Murray, 11 Or. 413; and State v.
Hansen. 25 Or. 395.
In addition to this, defendant had
called a witness having less Intimate
acquaintance with him than either of
the witnesses called by the state, and
when his testimony was objected to,
the district attorney said: "I don't
think he has shown a sufficiently
Intimate acquaintance to permit him
to testify, but I have no objection if
the state can Introduce the same
character of evidence." The court
said: "Very well, then let It be ad
mitted." The district attorney re
marked: "If It Is understood that tes
timony on the same line may be of
fered by the state," to which counsel
for defendant answered: "Certainly,
we could not help it." This practi
cally amounted to a stipulation, that
testimony of the character then being
discussed could be admitted, and the
testimony of the two witnesses above
mentioned was of the same character,
their qualifications being as great or
greater. Counsel cannot Induce the
court to adopt an erroneous rule of
evidence when It operates in his favor
and be heard to object to the applica
tion of the same rule when it mili
tates against him. If he makes it the
law of the case, he must abide the
consequences: Trlckey v. Clark, 60
Or. 516.
Counsel for defendant has adverted
to the sad consequences and Injustice
of executing a man in defendant's
mental condition, but the jury has
found that he knew right from wrong,
and understood the nature and qual
ity of the act, and we must assume,
in the absence of error by the court,
that they found correctly. The duty
of condemning any human being to
suffer the extreme penalty of the law
Is one which every court approaches
with regret. But If the prayers of his
Innocent and helpless wife were not
sufficient to prevent the defendant
from sending a bullet through ber
brain, as she lay fallen and defense
less before him, no mere considera
tions of sympathy or pity ought to
induce the minister of Justice to bend
the law to spare blm.
The Judgment of the circuit court
:s affirmed.
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Notice of Intention to Construct a
Sewer to Be Known as "Lateral
Sewer District No. 4."
Notice la hereby given that the
common council of the city of Salem,
Oregon, deems and considers It nec
essary and expedient, and proposes
to construct a sewer to be known as
"Lateral Sewer District No. 4." and
that there will be laid 8-Inch vitrified
or concrete gewer pipe along Twenty
first street, from Asylum avenue to
Chemeketa street, as shown and des
ignated and according to the maps,
plans and specifications adopted for
the same, and on file at the office of
the city recorder, which said plans
and specifications are hereby referred
to for a more detailed description of
said sewer, and hereby made a part
of this notice, and that the entire
cost of the same will be assessed up
on the property directly benefitted by
the construction or said sewer.
This notice Is published for ten.
(10) days by order of the common
council of the city of Salem, Oregon,
and the date of the first publication
thereof Is the 24th day of October,,
1911.
CHAS. F. ELGIN City Recorder.
10-24-llt
0
'o(Ice of Intention to Construct n
Sewer to Be Known ns "Lateral
Sewer District o. 2."
Notice Is hereby given thnt the
common council of the city of Salem,
Oregon, deems and considers It nec
essary and expedient and proposes to
construct a sewer to be known as
"Lateral Sewer District No. 2", and
that there shall be laid S-lnch vitri
fied or concrete sewer pipe along the
street between blocks 2, 3 and 4 and
block 1 and certain acreage proper
ty In the Pleasant Home Addition to
the city of Salem, Oregon; also along
the street between blocks 4 and 5, 3
and 0, and 2 and 7; thence In a north
westerly direction to High street;
also a connecting line between blocks
2 and 3 of said Pleasant Home Ad
dition; said sewer shall be construct
ed at the expense of the property di
rectly benefited and according to
the maps, plans nnd specifications
adopted for the same and on file at
the office of the city recorder, which
said plans and specifications are
hereby referred to for a mere de
tailed description of said sewer.
This notice Is published for ten
(10) days by order of the common
council of the city of Salem, Oregon,
and the date of the first publication
thereof Is the 25th day of October,
1911. CHAS. E. ELGIN,
10-25-llt City Recorder.
0
A Household Medicine thnt Gives
Confidence.
Is Foley's Honey and Tar Compound.
Mrs. T. J. Adams, 522 No. Kansas
Ave., Columbus, Kas., writes: "For
a number of years my children have
been subject to coughs and colds. I
got some of Foley's Honey and Tar
Compound and bave found that It
cured their coughs and colds in a
very short time, so I keep It in the
house all the time." Red Cross
Pharmacy, (H. Jerman.)
o '
Though we may never have loBt
any, most of us are looking for money
all the same.
o
The SoYcmber Wide World Maga
zine.
The Vlde World magazine for No
vember contains a number of Inter
eating articles and stories dealing
with different parts of the world.
There is a fully illustrated paper on
"The Troglodytes of Dieppe," another
on "Wild Boar Hunting In New Zeal
and" and a third dealing with "The
Romance of Opium-Smuggling."
Captain G. D. Halgh, late of the Mat-
aDeieiana Kener rorce, relates a
gruesome story of a friend of his
who was "Burled Alive by a Lion
E. D. Burrowes describes his exper
iences while "On the Trail of the
Shovel-Nosed Shark" and Dr. Max!
mus Neumayer continues the account
of his life "Among the Indians of
Bolivia." "The Trials of a Tender
foot" is amusing and "The Story of
the carved Peach-stone, by Com
mander J. Marnab, full of mystery
and thrills. Altogether the contents
of the November Wide World are
fully up to the mark and continue to
bear witness to the undoubted fact
that "Truth Is Stranger than Fic
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DEBATING
TEAM LOSES
ZIMMERMAN
University of" Oregon, Eugene, Oct.
27 In debate circles at the univer
sity, great anxiety is felt over the
failure of Howard Zimmerman, a
former Salem boy, to turn out for
debate. Owing to his Y. M. C. A.
work and. bis Btudles, Zimmerman
has refused to participate this year.
Mr. Zimmerman last year was a
member of the debating team that
won the championship of the Pacific
Coast, defeating both Washington
and Stanford. Both of these colleges
are after Oregon's scalp strong this
season, and the Oregon students are
very anxious to retain their prestige
in debate during the coming year.
-o
SYSTEMATIC BURGLARY
GOING OS IX SALEM
That there Is a systematic band of
robbers operating in the city Is little
doubted by those who have been in
close touch with the police depart
ment the last few days. Last Wednes
day the home of Mr. Ross Moores was
entered some time in the evening or
late afternoon and a considerable
quantity of silverware and other val
uable articles stolen. In this case
the robbers were evidently scared
away, for they did not take several
things of value which were at hand.
Thursday night the. home of Ralph
S. Vance was entered and quite a lit
tle clothing stolen. B:ntrance was
gained by forcing the woodshed door
and although several people were
sleeping in the house, none of them
were awakened.
Police Chief Hamilton and Officer
Burkhart are working on the cases,
and although there Is but little to go
on they hope to apprehend the felons
In the near future.
The November Strand Matftslne.
The November Strand contains a
very striking article entitled "A Vis
ion of Gold" by the well-known Eng
lish statistician, John Holt Schooling.
Mr. Schooling bases his article on a
single cent placed out at five per
centtum compound Interest, A. D. 1.
The sum which this single cent
would amount to at the close of the
year 1910 Is almost inconceivable.
One Illustration alone will b 11 nice to
show the collossal growth of an
American cent In 1,910 years. The
value If turned Into Bpecle would be
suillclent to make 26,000 millions of
spheres of solid gold, each one being
equal to the planet Earth In volume!
Another article of Interest Is con
tributed by Charles Frohman on
"Play Writing." There are stories of
interest by W. W. Jacobs, Barry
Pain, Richard Marsh, Arthur Morri
son, Tom Callon and other well
known writers. "Some Dickens Dis
coveries" Is an article dealing with
the origin of persons and places to
be found In Dickens' works. The
"Character Studies of Well Known
People" Is an interesting novelty.
o
Kicked by a Mai Horse.
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the frightful sore that developed, but
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25 cents at J. C. Perry's. 1
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There is no better land
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