Opinion
No. 35511.
May 22, 1944.
1. CRIMINAL LAW.
Letter to sheriff, from superintendent of state hospital to which defendant in homicide case had been sent by county supervisor at suggestion of defendant's attorneys, reciting that accused had been diagnosed by hospital medical staff "as without psychosis, not insane" was incompetent as an ex parte statement of fact (Code 1930, sec. 4596).
2. CRIMINAL LAW.
In murder prosecution with defense that accused was not mentally capable of committing crime, admitting letter from superintendent of state hospital that accused had been diagnosed by medical staff "as without psychosis, not insane," was prejudicial error (Code 1930, sec. 4596).
SMITH, C.J., and ANDERSON, J., dissenting.
APPEAL from the circuit court of Winston county, HON. JOHN F. ALLEN, Judge.
Neal Prisock and Z.A. Brantley, both of Louisville, for appellant.
The state failed to establish by evidence aliunde the corpus delicti, and erred in admitting the purported confession of the appellant.
Pope et al. v. State, 158 Miss. 794, 131 So. 264; Hogan v. State, 127 Miss. 407, 90 So. 99; Algheri v. State, 25 Miss. 584.
The court erred in overruling appellant's motion for a directed verdict for the appellant.
The confession introduced was not free and voluntary and should not have been admitted in evidence.
Ford v. State, 75 Miss. 101, 21 So. 524.
The appellant was mentally defective and was not mentally capacitated to make a confession and did not know and appreciate its effect, and it was error to admit it in evidence.
The court erred in admitting in evidence the letter from Dr. C.M. Speck to the sheriff, Dr. W.B. Holman.
The verdict of the jury was contrary to the law and evidence.
10 R.C.L. 1006, Sec. 194.
The court erred in overruling appellant's motion for a new trial.
Greek L. Rice, Attorney-General, by Geo. H. Ethridge, Assistant Attorney-General, for appellee.
It is recognized, of course, that a confession must be free and voluntary in order for it to be admitted, but the court below is primarily the judge of the sufficiency of the facts to justify the admission of a confession. He should be satisfied beyond reasonable doubt that confession was free and voluntary or that no inducements were held out to obtain it and no threats were made for that purpose. The law upon this question is well settled.
Richberger v. State, 90 Miss. 806, 44 So. 772; Carter v. State (Miss.), 24 So. 307; Tyler v. State, 159 Miss. 223, 131 So. 417; Donahue v. State, 142 Miss. 20, 107 So. 15; Brown v. State, 142 Miss. 335, 107 So. 373.
A confession is not inadmissible because an officer having the accused in his custody did not warn the defendant that it would be used against him.
Stepney v. City of Columbia, 157 Miss. 193, 127 So. 687.
Whether the confession is admissible or not the defendant has a right to have the matter heard and determined by the court out of the presence of the jury and has a right to introduce any evidence that he desired to introduce, tending to show that confession was not free and voluntary and, also, to show the lack of mental capacity to be bound by a confession which he made if he was incompetent to understand the nature and character of the acts to which he confessed and knew the difference between truth and falsehood. Nevertheless, it is not always reversible error to deny the full production of all the evidence desired, for the court in reviewing the action of the trial court will look to the record as made as a complete trial and judge therefrom whether there was reversible error.
White v. State, 129 Miss. 182, 91 So. 903, 24 A.L.R. 699; Ellis v. State, 65 Miss. 44, 3 So. 188, 7 Am. St. Rep. 634; Randolph v. State, 152 Miss. 48, 118 So. 354, and other cases in Mississippi Digest, Anno. Criminal Law, Key 53(4).
On the capacity of the appellant to make a confession, the evidence in the record shows beyond question that he knew the difference between right and wrong and that he had the intelligence of a boy from eleven to thirteen years of age. It is not required that the accused shall know the rules of law treating on the weight and worth of the confession nor of the conditions under which they may be admitted in evidence. The only requirement is that he has sufficient intelligence to understand generally the difference between right and wrong, and between truth and falsehood. In other words, the capacity to know whether the facts confessed were false or whether they were illusions, delusions or hallucinations. The rule in this state for testing sanity is capacity to know right from wrong. The law does not recognize all of the theories that psychiatrists may have concerning mental diseases or how far such diseases impair the mind and control the will. The law has placed the standard as being capable of knowing right from wrong in the moral sense. All of the medical testimony offered shows that the appellant did have the capacity to know right from wrong or the questions morally considered as to the nature of the act about which the confession was made. The utmost that can be said of the appellant as to his capacity was that he was subnormal in mentality and was nervous, prone to emotional excitement, in a different degree from ordinary people, and that he had been subnormal from birth, but there is no evidence that would warrant the court in believing that the appellant did not know the difference between right and wrong and did not know whether he was telling the truth or a falsehood at the time he made the confession. It appears abundantly from the record that the appellant had solicited the district attorney to assure him that he, the appellant, would not hang, or the death penalty be inflicted on him, and if he would get this assurance that he would tell all about the matter. The district attorney refused to give such assurance and positively told the appellant that he could neither threaten him or induce him to make a confession. The trial judge was the judge of the weight and value of the testimony of appellant's capacity and his judgment may not be disturbed on appeal where it is sustained by ample competent evidence. The record not only furnishes such testimony but the testimony is overwhelmingly to the effect that the appellant did have such sufficient mental capacity to know what he was doing.
As to the contention that the state failed to establish by evidence aliunde the corpus delicti, and erred in admitting the purported confession of the appellant, I submit that the evidence was sufficient apart from the evidence to establish the corpus delicti. It is not required that the corpus delicti be established beyond all reasonable doubt before a confession may be received. It is sufficient if it establishes the corpus delicti by a preponderance of the evidence.
Brooks v. State, 178 Miss. 575, 173 So. 409.
The same rule, of course, would apply to the judge in passing on the competency of the confession and the sufficiency of the corpus delicti to admit the confession.
Anderson v. State, 184 Miss. 892, 186 So. 836; Walker v. State, 127 Miss. 246, 89 So. 921; Floyd v. State, 138 Miss. 697, 103 So. 368; Keeton v. State, 175 Miss. 631, 167 So. 68.
It is assigned as error that the court erred in admitting in evidence a letter from Dr. C.M. Speck to the sheriff, Dr. W.B. Holman. It appears that during the court term July, 1941, the question was raised affecting the mental capacity of the appellant and at the request of appellant, through his attorneys, the court sent him to the State Hospital for the insane at Whitfield for observation. He was sent there at the request of the appellant and by order of the court for observation as to whether he was mentally competent or whether he was insane to the extent that he was not responsible for his acts under the law. The evidence in question merely showed that he had been under observation and was not mentally incompetent and was responsible for his acts. In other words, after the observation by the state authorities dealing with insanity he was returned to the sheriff with the explanation as to why he could not be kept at the institution. I submit that the letter was admissible on the grounds stated by the trial judge; that he was sent there by the trial judge for the purpose of observation and at the request of the appellant's attorneys.
Horton was indicted for murder and convicted of manslaughter. He appeals.
One main defense was that he was not mentally capable of committing the crime. That was a real and a vital issue before the jury. Dr. Hickman, Superintendent of the East Mississippi State Hospital, interviewed and examined Horton, and testified that he had the mentality of the average person of seven or eight years of age, and, in his opinion, did not know right from wrong.
Horton's family physician and one other doctor testified that Horton had the mentality of one eleven or twelve years of age.
There was other evidence for the defendant, as well as the state, bearing upon that question.
Under these circumstances the state, over the objection of the defendant, introduced in evidence the following letter from Dr. Speck, Superintendent of Mississippi State Hospital, to which institution Horton, at the suggestion of his attorneys, had been sent by the supervisors of Winston County.
"Mississippi State Hospital. "Clyde M. Speck, M.D., F.A.C.S. "Superintendent "Whitfield, Mississippi.
"Sept. 1, 1941.
"Hon. W.B. Holman, "Sheriff, "Louisville, Mississippi,
"Dear Sir:
"Re: Ernest Horton
"This is to inform you that Ernest Horton has been diagnosed by our Medical Staff as without psychosis, not insane. Therefore, under section 4596 of the Code of 1930, I am asking that you come for him as soon as possible and return him to his home county.
"Yours very truly, "C.M. Speck, M.D. "Superintendent."
This letter was not competent. Dr. Speck did not testify. The defendant was not confronted by the witness. He had no opportunity to cross-examine him, nor to develop the reasons for, or grounds which formed the basis of, the conclusions set out in the letter, nor to ascertain the ability and learning of the witness upon the subject of insanity. The letter was purely an ex parte statement of fact, not under oath.
Nor can it be said that it did not influence the jury. We cannot know what influence it did have, but it is reasonable to assume that it had great weight. Here was the Superintendent of the state's main institution for the mentally sick, occupying the highest official position in the state in that respect, telling the jury that his medical staff had diagnosed Horton "as without psychosis, not insane," and requesting the sheriff to come for him. It is but natural and reasonable that this letter had much influence with the jury. Its admission was reversible error.
Appellant contends that the state did not prove the corpus delicti aliunde the purported confession of the defendant under the rules heretofore announced by this court. A majority of the court is of the opinion that this contention is not well founded.
If there are other errors in the record, they will likely not recur on another trial.
Reversed and remanded.
DISSENTING OPINION.
I agree with the controlling opinion that the admission of Dr. Speck's letter was reversible error, but I go further; in my opinion the evidence fell far short of showing that the deceased met his death through any criminal agency. It is true that the corpus delicti is not required to be proven beyond every reasonable doubt before the confession is admissible; but it must be shown by the preponderance of the evidence, before it can be supplemented by the confession. Brooks v. State, 178 Miss. 375, 173 So. 409; Anderson v. State, 184 Miss. 892, 186 So. 836.
What is the evidence here, outside of the confession? The deceased and his companions were on a drunken carouse on Monday night. He left them while drunk, and they went on in their car. On the following Wednesday afternoon the deceased was found dead in a shallow stream. He was not entirely covered by water — a part of his face and a part of his shoulder were above the water. The only bruise he had was a slight one on his cheek. There was no evidence whatever that he had received a wound which could have caused his death. None of the surroundings indicated that his death was caused by any criminal agency. The much more reasonable theory is that he was in such a drunken state that he stumbled and fell in the branch and drowned — that he was so drunk he was unable to struggle out. It is hard for me to conceive of such a complete failure to prove the corpus delicti, independent of the confession.
In my opinion, the court should have directed a verdict of not guilty.
DISSENTING OPINION.
The judgment of the court below should be affirmed. The error in admitting Dr. Speck's letter in evidence was rendered harmless by the introduction in evidence by the appellant of a letter from Dr. Meriwether to one of the appellant's attorneys. Dr. Speck's letter stated that the appellant had been diagnosed by the medical staff of the Mississippi State Hospital as being "without psychosis, not insane."
Dr. Meriwether was a member of that medical staff, and his letter was to the same effect as Dr. Speck's as to the result of the examination of the appellant by that medical staff.