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?

Section 1120.

“Offense committed by an idiot or lunatic. An act done by a person who is an idiot, imbecile, lunatic, or insane is not a crime. A person cannot be tried, sentenced to any punishment, or punished for a crime while he is in a state of idiocy, imbecility, lunacy or insanity, or is incapable of understanding the proceeding or making his defense. A person is not excused from criminal liability as an idiot, imbecile, lunatic, or insane person except upon proof that at the time of the committing of the alleged criminal act he was laboring under such a defect of reason as not to know the nature and quality of the act he was doing or know the nature of the act as wrong.”

By the Court: Well, now, my suggestion is why not embody that in your question.

By Mr. McIntyre: That is the second question, your Honor....

Q. I asked you what was your opinion concerning his mental condition.

A. That he is an imbecile.

Q. Now, Doctor, assuming that all the acts recited in the hypothetical question to have been established by evidence, to be true, in conjunction with the physical and mental examination made by you in the County Jail on the 17th day of May this year,—from your experience and your knowledge of imbeciles and idiots, in your opinion was Jean Gianini at the time of the killing of Lida Beecher in such a mental condition as to know the nature and quality of the act he was doing or that the act was wrong?

By Mr. Thomas: I object to it as improper in form and copulative.

Objection overruled.

Q. Your opinion, Doctor?

A. He was not in such condition.