Griswold Murder Case (Part Three)
The Cortland Democrat, Friday, April 11, 1890.
The Griswold Case.
Monday morning at 8:15 o'clock Mr. Pierce began the summing up of case for defense and continued his masterly effort until 12:15. He signed the question of insanity at considerable length, pointed out the desire of counsel for a fair trial on part of defense, but did not endeavor to go through voluminous evidence in its entirety. The burden of evidence was in favor of self defense doubtless supported by insane condition of mind—the deed being committed instantaneously while defendant was in flight for life, being in mortal fear of deceased as the evidence would show.
There was no chance for a compromise—either for murder in the first degree or the absolute acquittal of the prisoner insanity acting as an alternative. The press has cultivated the popular idea that the insanity plea when introduced into the defense of a crime is merely that of a last refuge.
In 1792 we find the pioneer movements for the humane caring of insane persons, each decade noting the rapid improvement of facilities, homelike institutions and gentle nursing. Counsel dwelt at length in the review of testimony of the more important witnesses as especially touching either the matters of self defense or insane tendency. Again, whether Mrs. O'Shea or the son Daniel could or did view the affray from C and B, testimony tended to conflict; was there a malicious spirit in the breast of defendant or like human nature was the man at the moment of shooting in fear of bodily harm and acted on the impulse of the moment. In closing counsel feelingly alluded to his task of defending the prisoner saying ”I may not receive any reward on this earth; but when I have passed away there may be those who, pausing at the grave mound can say that I was faithful to my duty—the defense of this (pointing to defendant) poor old man."
At 1:30 o'clock District Attorney Bronson opened in behalf of the people, step by step replying to the charges made by defendant's counsel against the peoples' evidence, beginning his effort by the question: "What is the object of a death penalty?" Is it not its deteriorating effects upon the acts of criminals. The fact of this murder is conceded by defense as well as people—the intervening distance proven by evidence to have existed between D and A is so great as to bar the possibility of the plea of self defense. The obligation of the prosecution in this case is of vast import—the welfare of society on one hand and the life of a human being on the other. While the prisoner may have been eccentric, yet if he were insane at time of shooting he must have been for a period of 30 years—a fact which undisputed medical testimony fails to sustain, the limit of insanity being only 12 years. The testimony of several witnesses was reviewed upon this and the subject of character of deceased, the large number who swore to the good reputation of O'Shea as against it, going to prove there was no provocation for the deed. The testimony of defendant's son, Jay L., was simply an utterance of the truth. Why did defendant go up to O'Shea's house in the manner he did instead of going to the door in a neighborly way and inform him where the cows were? Why take the gun with him? or Robert, Jr., wait from 8:30 until near noon of the fatal day, after hearing a gun report, without an effort to ascertain the cause, knowing the hostile feeling existing.
Mr. Bronson was obliged to be seated during a portion of his argument, by permission of the Court, owing to an illness which nearly overpowered him. He closed his appeal to the jury at 4:30.
|Judge Walter Lloyd Smith|
JUDGE SMITH'S CHARGE.
Standing room was at a premium both in the corridor and aisles of the Court room when Judge Walter Lloyd Smith, of Elmira, began the delivery of his charge in a clear, full tone of voice, inviting the closest attention and silence of the audience. His honor occupied exactly 33 minutes in the delivery of this masterly, unbiased review of the evidence and statement of the rules of the law governing the case which is herewith printed in full:
Gentlemen of the Jury:—The prisoner at the bar has been indicted by a grand jury of Cortland County, for one of the gravest crimes that can be committed in our land; that of taking the life of a fellow man without authority of law. His liberty, yes, his life is here in question; the protection and security of society may be in question. It is incumbent upon you, therefore, to give to this case the most serious and the most thorough consideration, in order that you may find where the truth lies.
I need hardly say to you, gentlemen, that you are to approach this case without fear or favor, without prejudice and without sympathy. It is not your province to temper justice with mercy. You are sworn here to decide this case well and truly upon the evidence that has been given, and if, upon that evidence, under the rules of law which I shall lay down to you, the people have not shown that this defendant has been guilty of a crime, then, gentlemen, your oaths will compel you to set him free. If, on the other hand, under the rules of law which I shall give you, the evidence shall establish that the prisoner is guilty of a crime, then your verdict must so state, and you must leave to the court and to the law the responsibility of its punishment.
There are certain facts which stand here upon undisputed evidence, to-wit: that on the 24th day of Sept. 1889, in the town of Preble, in the County of Cortland, in the State of New York, this defendant, Robert W. Griswold, shot one Dennis O'Shea, and that upon that day he died by reason of the wound. To answer for this act he is here charged by criminal indictment and his answer is, gentlemen, that his acts were without guilt; and the trial of the issue raised by this charge and this answer you are now about to close.
In determining the guilt or innocence of this defendant I will submit to you five questions for your consideration. First, was the defendant legally responsible for his act. Second, was his act justifiable. Third, was there an intent to kill. Fourth, was the deed done in the heat of passion and with a dangerous weapon. Fifth, was there premeditation and deliberation.
Recurring then to the first question, "Was the defendant legally responsible for his act?" Section 20 of the Penal Code reads that "an act done by a person who is an idiot, imbecile, lunatic or insane, is not a crime." That section is modified by the next section, which reads that "a person is not excused from criminal liability as an idiot, imbecile, lunatic or insane person except upon proof that at the time of committing the alleged criminal act he was laboring under such a defect of reason as either, first, not to know the nature and quality of the act be was doing, or second, not to know that the act was wrong." You will notice, therefore, that there may be a pretty broad difference between what a layman may call insanity, or between what medical men may term insanity, and legal irresponsibility. No matter how insane a man may be, no matter to what extent his reason may be dethroned, if he has knowledge of the nature and quality of his act, and has knowledge that it is wrong, then, gentlemen of the jury, he is responsible for that act, and if that act constitutes a crime, then he must suffer the punishment which the law prescribes.
In determining whether this man is responsible legally for his acts, I will call your attention to Section 17 of the Penal Code, which reads, that a person is presumed to be responsible for his acts and the burden of proof that he is irresponsible is upon the accused person, except as otherwise prescribed in this Code.
Now, I will call your attention summarily to the claims of the different counsel on the question of the sanity or insanity [of] this defendant. The defendant's counsel claims that he is insane, and. more than that, he claims that he did not know the difference between right and wrong; that he did not know the nature and quality of his act. He alleges that the defendant was predisposed to insanity; that his father has been shown here to have been insane; his sister to have been insane and to have died in an insane asylum; and upon the evidence of experts heredity is an important factor in determining the question of insanity.
Furthermore he claims that there was a marked change of life at about thirty from his manner of dress and appearance to that shown thereafter. He claims that the defendant had always been a wandering man; that his vocations were so varied and their conduct such as to indicate an unusual and unsound mind. He claims that his acts, as shown to you here, were irrational; that he carried a watch in his hat; that he advertised extravagantly, inasmuch as he had a small stock only in his store; that his advertisements themselves were irrational; that he engaged in walking matches and in spelling matches and gave prizes therefor; that he compounded a hair ointment and sold but little of it; that he sang and danced at inopportune times and was unduly excitable; that he required but few hours sleep; was jealous of his wife without foundation; was suspicious of rival jewelers, and that he imagined that he had forced one to suicide when such was not the fact; that he stated he preferred death to being adjudged insane, and they point to the reason which he gave for it; that he thought he was warned from danger by an audible "still small voice;" that he killed O'Shea without reasonable provocation; even upon the assumption that the people's evidence is true; that he gave himself up to the sheriff and showed no sorrow or remorse, and has been confident of success on this trial and apparently been indifferent to the gravity of the situation, and that their experts have sworn that the defendant is insane.
These are some of the claims which the defendant's counsel makes here, in the contention that the defendant is insane. You will remember the further claims made by his counsel, and any legitimate inference from the facts, whether or not counsel has called them to your attention.
On the other hand, the people say that they will admit the defendant was an eccentric person, but their claim is that it proceeded in no way beyond eccentricity. They say there was no predisposition to insanity shown; that upon the evidence the father was, at most, only an eccentric man and not insane; that the cause of the sister's insanity is not shown, and until it be shown, that there is no reason for claiming that the insanity was such as to make it hereditary. They claim that there was no marked change shown in defendant's life, and that the change in dress and appearance was a natural change from the pride of boyhood to the indifference of middle or later life. They claim that some of the defendant's eccentricities were due to his eagerness to build up his business and some were due to his vigor of health and strength. They claim that they have shown that insanity is a progressive disease; that no case is known where insanity has existed for 30 or 35 years, where the patient retains his mind to such an extent as the defendant; that they usually become demented within from three to five years; that the average life of an insane man is twelve years; that one case only is known where chronic insanity has lasted thirty years and in that case the patient became incoherent and well advanced toward dementia. They claim that the first time the defendant is shown to have spoken of having heard the "still small voice" was after he had heard the evidence of the people in this case, and that it was made to the doctor who was to swear to his insanity, and that these facts throw discredit upon such a statement. They claim, too, his apparent indifference is due, partly to his partial deafness, and is apparent only, and not real, and that he does take an interest in this trial; that whatever may be his eccentricities, he knew that the act was wrong; that this is shown by his action in alluring the man to a place supposed by him to be concealed from view, and afterward by his efforts to conceal the crime; and they claim that their experts have proven to you that the defendant was a sane man and that he knew the difference between right and wrong.
Now, gentlemen, as in the case of the defendant's claims, I simply give a summary, and if I have omitted anything you will remember it, and if I have misstated any of these claims, you will correct me and determine upon all the evidence the single question whether the defendant at the time he did this act knew the difference between right and wrong; whether he knew the nature and quality of the act and knew it was wrong. If he did not know the nature and quality of his act, or if he did not know that it was wrong, then, gentlemen of the jury, he is legally irresponsible and has committed no crime. If he did know the nature and quality of his act, and did know that it was wrong, then he is guilty, if that act constituted a crime. This question is an important question in this case, as it is in all cases, and it calls for your most serious consideration, to the end, on the one hand, that no man may be punished for an insane act, and on the other hand that a refuge which the law has provided for innocence shall not be made a means of escape for guilt.
If you find, gentlemen, that this defendant was legally responsible for his act, you will reach the second question in this case, and that is, was this homicide justifiable. The word homicide means the killing of a human being. Section 205 of the Penal Code reads, as far as it is applicable to this case, "Homicide is justifiable when committed in the lawful defense of the slayer when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony, or to do some great personal injury to the slayer, and there is imminent danger of such design being accomplished."
There are two questions, then, which you will consider in determining whether this homicide is justifiable. First, was the defendant in fact assailed by Mr. O'Shea? Upon that you have some direct evidence and some circumstantial. The direct evidence is, first, that of the defendant himself, who tells you the circumstances from his standpoint of this affray. You have the direct evidence, also, of Mary O'Shea, who testifies to what she saw from the upper window, and also saw prior to that before she went upstairs. You have the testimony of Daniel O'Shea as to what he saw from the fence, and you have also the testimony of Dennis O'Shea; that is, the dying declarations that were made by him; both those that were written out and those that have been testified to. These are to be given such weight as you, in your sound judgment, shall think them entitled to, under all the circumstances of the case.
The circumstantial evidence is the relations which had existed prior to this transaction; the character of O'Shea for quarrelsomeness, vindictiveness and fighting; that is also a proper question for you to consider in determining whether he made an assault upon the defendant; also the threats that the defendant had made that he would kill O'Shea; his motive and purpose in going up to the house that morning; his taking his gun, and the preparation, if any, that he made for meeting O'Shea; his admission or statements afterward as to the transaction, and the reason of his killing O'Shea. One or two witnesses have sworn that he said he killed him in defense of himself and family. Gentlemen, if that were true, that might indicate, and you will say whether it would or not, that his killing of O'Shea was in fear of some future danger. Now that was not justifiable. There was no such assault made upon any member of his family as would justify the killing of O'Shea. The assault must have been made on him and it must have been in defense of himself that the killing was done.
If you shall find that the assault was made by O'Shea upon defendant, you will reach the second question which you will consider in determining whether this homicide was justifiable. If O'Shea made this assault upon defendant, did the defendant have reasonable grounds to apprehend great bodily harm and reasonable ground to apprehend that there was actual danger of its accomplishment? It is not a question as to whether there was actual danger of bodily harm. The question is whether the defendant, such as he was with the knowledge of Mr. O'Shea's character, with his weapon, and under all the circumstances, had reasonable ground to apprehend great bodily harm. Also you may consider the size and strength of these two men, and you may consider their comparative weight, and all the other circumstances. Now did this defendant in good faith believe that he had reasonable ground to apprehend great bodily harm and that there was reasonable ground to apprehend the accomplishment of that harm? Taking the man as he was, whether he was weak or strong physically; whether he was weak or strong mentally or morally, you are to determine what was, under all the circumstances, reasonable ground for him to apprehend great bodily harm, and if you shall determine that the assault was made by O'Shea upon defendant, and that the defendant did have reasonable ground to apprehend great bodily harm, and also reasonable ground to apprehend that there was imminent danger of its accomplishment, then you will find that the defendant had the right to shoot in self defense.
One thing more, and that is mere ground to apprehend an ordinary assault and battery is not enough to authorize the killing of an assailant. There must have been reasonable ground to apprehend great bodily harm. The right to kill in self defense is an important one. It is a high prerogative which the law gives, and it only gives it as a right to a defendant to protect himself against his assailant when there is reasonable ground to apprehend great bodily harm. There is one condition which the law attaches to this right to kill an assailant and that condition is that the defendant must himself use all efforts to avoid the affray, and he must use all efforts to escape as far as he can.
The old writers upon law used to say that he must be "driven to the wall."That is a figurative expression; it means simply this; that he must have been driven to a place of danger so that he could not escape without danger to himself or without a reasonable ground to apprehend danger. If he could have fled from his assailant without danger to himself, he would be bound to do it; and if this defendant could have thus escaped he was not justified in killing Mr. O'Shea in right of self defense.
If you shall find that the defendant was responsible for his act, and shall find that upon the 24th day of Sept. he shot and killed Dennis O'Shea, then, gentlemen, of the jury, the defendant has committed some crime.
To enable you to determine what crime he has committed, there are three questions which I will submit to you. First, was there an intent to kill. Second was the killing in the heat of passion and with a dangerous weapon. Third, was there premeditation and deliberation. Now I call your attention to the fact that this indictment is an indictment for murder in the first degree. The law provides, however, that if you shall find that he is guilty of murder in the second degree, or of manslaughter in the first or second degree, you may so determine in your verdict, notwithstanding the indictment is for murder in the first degree. The first question then, in order to enable you to determine what crime he has committed, if any, is was the act done by the defendant with the intent to kill. Upon that I will charge you that one is presumed to intend the natural consequences of his act which he could foresee as probable.
You are to consider the weapon that was used. Was it a dangerous weapon? Consider whether he aimed for a vital part. Consider what motive he had. Had he made threats in earnest? What statements were made afterward? Consider his own testimony upon the subject; consider the excitement working upon his mind, strong or feeble, as you may find it; all the circumstances surrounding this shooting you are to consider in determining whether that shot was fired by the defendant with an intent to kill Dennis O'Shea. If it were fired with an intent to kill Dennis O'Shea, and this man was responsible for his act and his act was not justifiable, then he is guilty of murder. If the shot was fired without intent to kill, and the man is responsible for his act and his act was not justifiable then he is guilty of manslaughter in one of the two degrees, and in order to enable you to determine, if you shall reach that question, of which degree of manslaughter he is guilty, you will determine the second question which I submit to you, and that is, was the act done in the heat of passion and with a dangerous weapon. If it were, and there was no intent to kill, then it is manslaughter in the first degree. If it were not done in the heat of passion and with a dangerous weapon, and there was no intent to kill, he is guilty of manslaughter in the second degree. Remember, now, if there was an intent to kill, his crime, if any, is the crime of murder; and to determine whether he be guilty of murder in the first or second degree, you will determine the third question which I submit to you, was there premeditation and deliberation, to constitute the crime of murder in the first degree? It means that there must have been an opportunity for reflection and reflection must have been had, and upon that reflection there must have been a choice to kill, after having an opportunity to choose not to kill. No especial period of time is necessary.
It has been said by a learned writer that the human mind acts with celerity. Whether there be an instant or a month, if there was time and opportunity for reflection and reflection was had, and upon that reflection there was an opportunity to choose to kill or not to kill, and there was a choice to kill, and in pursuance of that choice the defendant killed Dennis O'Shea, then, gentlemen, if you find the other questions against the defendant, he is guilty of the crime of murder in the first degree.
If, however, you shall find there was no premeditation and deliberation, and that there was an intent to kill, if you find the other questions against the defendant, then you will find that it was murder in the second degree.
Now, in determining whether there was that premeditation and deliberation you are to consider all the circumstances of this case; the relations of the parties and the excitement the defendant was under; that excitement working upon his mind, as it was, whether strong or weak, as you shall find and determine. Under all these circumstances you are to decided whether there was that premeditation and deliberation necessary to constitute murder in the first degree.
There is a general rule which is applicable to all criminal cases, and that is that a man is presumed innocent until he is guilty, and if there be a reasonable doubt in your minds upon any question connected with this case, that doubt must be solved in favor of the defendant.
If you have a reasonable doubt, gentlemen, of his legal responsibility, the defendant is entitled to the benefit of that doubt. If you have a reasonable doubt whether this act was justifiable, the defendant was entitled to the benefit of doubt. If you have a reasonable doubt to whether there was an intent to kill, you cannot find him guilty of murder in either of the two degrees. If you have a reasonable doubt as to whether this act was done in the heat of passion and with a dangerous weapon, you cannot find him guilty of manslaughter in the first degree. If you have a reasonable doubt as to whether there was premeditation and deliberation, you cannot find him guilty of murder in the first degree. Gentlemen, upon every question in this case the humanity of the law requires you to give the defendant the benefit fully of every reasonable doubt.
But, gentlemen, what is a reasonable doubt? It is a doubt born of reason; not of caprice; not of prejudice; not of sympathy. It is a doubt which a reasonably fair man would entertain after a careful, conscientious review of this evidence. It is a doubt which leaves your minds without an abiding conviction, to a reasonable degree of certainty of the prisoner's guilt. If you have not such a conviction, gentlemen, to a reasonable degree of certainty, upon any question in this case, then you have a reasonable doubt, of which the prisoner is entitled to the benefit. But if you have such a conviction, then, gentlemen, as manly men and honest jurors, you must find the prisoner guilty of the crime which he has committed, and you must not shield yourselves behind some possible or imaginary doubt. In order that you may not misunderstand me as to these different crimes, I will read some of the sections of the statute which define the different crimes.
First. "Murder in the First Degree. The killing of a human being, unless it is excusable or justifiable is murder in the first degree when committed from a deliberate and premeditated design to effect the death of the person killed."
"Murder in the Second Degree. Such killing of a human being is murder in the second degree when committed with a design to affect the death of the person killed, but without deliberation and premeditation."
"Manslaughter in the First Degree. Such homicide is manslaughter in the first degree when committed without a design to effect death, in the heat of passion, by means of dangerous weapons."
"Manslaughter in the Second Degree. Such homicide is manslaughter in the second degree when committed without a design to affect death by any act which according to the provisions of this chapter does not constitute the crime of murder in the first or second degree, nor manslaughter in the first degree."
I have read such parts of the statute only as refer to the case in hand. Now if this defendant were convicted of murder in the first degree, his punishment would be death [electric chair—CC editor]. If he were convicted of murder in the second degree, his punishment would be imprisonment in a state's prison for life. If he were convicted of manslaughter in the first degree, his punishment would be imprisonment for not less than five years, nor more than twenty years in a state's prison. If he is convicted of manslaughter in the second degree, his punishment would be imprisonment for not less than one year, nor more than fifteen years, or by a fine of one hundred dollars, or by both.
In case you shall find that he is not responsible for his acts, then your verdict will be "not guilty," and in that verdict, gentlemen, you must say "on the ground of insanity." If you acquit him on the ground of insanity, you must let your verdict so state.
I have not intended to indicate to you what my opinion is upon any question connected with this trial. If you think you have gleaned from any ruling that I have made, or from any remark during this case, or from any part of my charge, any intimation of what my opinion is, you are to disregard it entirely; you are to decide the facts yourselves, upon your own responsibility. The law of the case you must take as I have given it to you. You have seen the witnesses upon the stand, and can judge of their credibility; and under all the circumstances of this case you must find where the truth lies.
My duty is at an end. I need not again remind you of the grave responsibilities which we have here assumed. They have been assumed without your choice and without mine. An imperative necessity has demanded that we should assume them, and now an imperative duty demands that they should be performed faithfully, fearlessly and conscientiously.
If your verdict should be influenced by any motive of fear or favor, of sympathy or prejudice, it would be unjust to the parties in this case; it would be unjust to yourselves and it would be a reproach upon the due administration of the law.
At 10:45 A. M., Tuesday, the jury came in to the box and through their foreman, J. P. Lyon, handed to the Court a written request that the Court instruct their number on what constitutes crime classified as murder in the first and second degrees, also that of manslaughter in the same degrees and the punishment attending such findings. After which the foreman requested the Court to furnish them a copy of the same in his hand, defendant's counsel not objecting until after the complying with said request when an exception was taken. The jury retired at 11:12 returning again at 2:30 rendering a verdict "that we find the prisoner, Robert W. Griswold, guilty of manslaughter in the first degree."
The jury were discharged and Court adjourned until Tuesday, April 15, at 10 A. M., when sentence will be pronounced and motions, if any, heard.