This appellant was tried and convicted of murder in the first degree and was given the death penalty. The *Page 455 homicide and the defendant's commission of same was established without dispute, and the only seriously controverted issue that was submitted to the jury was his insanity vel non at the time of the killing. The defendant offered much evidence tending to establish his insanity, including the opinion of several alienists or mental experts. The state, on the other hand, offered several nonexpert witnesses, who were acquainted with the defendant and who testified that he was sane. The state also offered as a witness Dr. Jackson, who qualified as a medical expert, and who disclosed a study of leading works on insanity and more experience therewith than the average doctor. Not only was a predicate laid as to the qualification of Dr. Jackson as an expert, but he was permitted to give his opinion, upon direct examination, as an expert upon mental disease, and was asked for his opinion as to the sanity of this defendant, based, not upon his acquaintance and personal observation alone, but in connection with his "knowledge of nervous and mental disease." The witness said:
"I would say that he is sane, so far as my knowledge of his past is concerned."
The state having gotten the benefit of this testimony, it was but just and fair for the defendant to cross-examine this witness, and get his opinion as to his mental condition, based upon the hypothesis contained in the question, especially in view of the fact that said witness Jackson guarded his opinion that defendant was sane by disclaiming, or excluding, a knowledge of his past, and the hypothetical question sought to get defendant's past history, condition, and conduct before said witness, and then get from him an opinion based upon all of the facts instead of a part of same. Nor can the action of the trial court be justified upon the statement of counsel for the state that Dr. Jackson had not been introduced by the state as an expert, as he was shown to be such and so used by the character of questions asked him upon direct examination and his replies thereto, or by the subsequent statement of Dr. Jackson that he did not claim to be an alienist or an expert on insanity. We think the witness simply meant to say that he did not treat insane patients, but did not intend to contradict himself as to what he had previously stated as to his study of mental disease and his ability to diagnose such cases. Moreover, if he was expert enough for the state to get his opinion on scientific questions relating to mental disease and of the sanity vel non of this defendant, based in part upon his knowledge of mental and nervous disease, he should have been subjected to the defendant's right to cross-examination in an effort to neutralize his testimony by getting all the material facts before him.
While granting or refusing a continuance is usually discretionary with the trial court, and the ruling in this respect will not be revised by this court, in the absence of an abuse of discretion, we think that the record shows such a state of facts as to demand a pronouncement by this court of reversible error on the part of the trial court in overruling the defendant's motion to withdraw the case from the jury and continue same for the reasons set out in the motion; the facts as there set out being practically undisputed. (The reporter will set out the motion.) The trial court also erred in not granting the motion for a new trial, because the defendant did not have a fair and impartial trial. The offense charged and the manner of perpetration was so harrowing and revolting as to stir the blood of the coolest and most law-abiding.
"But the law should prevail, without any reference to the magnitude or brutality of the offense charged. No matter how revolting the accusation, how clear the proof, or how degraded, or even brutal, the offender, the Constitution, the law, the very genius of Anglo-American liberty, demand a fair and impartial trial. If guilty, let him suffer such penalty as an impartial jury, unawed by outside pressure, may under the law inflict upon him. He is a human being and is entitled to this. Let not an outraged public, or one which deems itself outraged, stain its own hands — stamp on its soul the sin of a great crime — on the false plea that it is but the avenger of the innocent."
The accused, being entitled to a trial by an impartial jury, is deprived of this right when the jury is overawed or coerced by outside influence, pressure, or conduct. The formulation of a maddened mob for the purpose of intimidating the court or jury, and thereby using the machinery of the law as an instrumentality for wreaking its vengeance upon the accused, is as unjustifiable as a direct resort to violence. The former is, perhaps, more reprehensible than the latter, as it is but an attempt to conceal the outrage with the cloak of a trial and judgment of a legal tribunal. The evidence not only discloses such conduct on the part of the mob as would overawe the average jury, but indicates that the entire atmosphere during the trial, from start to finish, was permeated with excitement, feeling, and a general determination to condemn and punish this defendant, regardless of his mental responsibility at the time of the unfortunate homicide. Indeed, it appears that the mob, during the progress of the trial, attempted to break the jail lock and get to the accused, being restrained by the valor and vigilance of the sheriff, and did not disperse, even after an admonition by several high officials, including the Attorney General, and after being assured that the trial would proceed the next morning, and much of this was seen or heard by the jury. *Page 456
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
All the Justices concur.