Opinion
No. 32178.
April 6, 1936.
1. CRIMINAL LAW.
Defendant who represented to purchaser of growing timber that land on which timber stood was no part of her homestead, and who subsequently obtained injunction against removal of timber on ground land was homestead, was properly convicted of obtaining money under false pretenses, as against contention that defendant was insane when deed was made.
2. CRIMINAL LAW.
Test of responsibility for crime where insanity is defense is whether defendant knew difference between right and wrong.
APPEAL from circuit court of Pontotoc county. HON. THOS. H. JOHNSTON, Judge.
C.P. and S.H. Long, of Tupelo, for appellant.
The uncontradicted testimony was as shown by the record that appellant was in the year 1932 adjudged insane by the proper authorities of Tallahatchie county and sent to the asylum and had been at least on one other occasion so adjudged by the proper authorities of the state of Arkansas and confined in the asylum of that state, as a lunatic and in fact had been in the asylum in one or the other of these states for periods of time varying in length on several occasions. In addition to this testimony, the record of the appellant's conduct and what occurred during the progress of the trial and by reason of which the trial of the cause had to be temporarily suspended and the testimony of the doctors who testified in the case as to her condition at the time of the trial, and a short time before, all shows this woman was unaccountable criminally for her actions at the time of the trial. None of this evidence was contradicted or attempted to be contradicted except certain witnesses were placed on the stand as witnesses for the state in rebuttal, who testified that she was sane on March 6, 1935, the day she made the deed. Not one word of evidence was introduced by the state as to her mental condition at any other time except on the day named.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
It is true, as stated by appellant, that it is uncontradicted that appellant was adjudicated a lunatic in 1932 in Tallahatchie county. The record will also show, and without contradiction, that she stayed in the Mississippi Asylum for the Insane only a few weeks at that time; that her husband sent her money to come home on and that she has not been in an asylum since 1932.
Hoye v. State, 169 Miss. 111, 152 So. 644.
The record fairly shows that appellant was released from the hospital shortly after she was put in there. The act of the authorities in releasing her at that time, on its face, shows that they had "passed judgment" on her mental condition and had adjudicated that she was "sane, or had recovered her sanity and was entitled to a discharge."
There is not one single scintilla of proof in this record that the appellant was incapable of distinguishing between right and wrong or that she was incapable of realizing the nature and quality of her act. This is the true test, so far as Mississippi is concerned.
Smith v. State, 95 Miss. 786, 49 So. 945; Hoye v. State, 169 Miss. 111, 152 So. 644; Grissom v. State, 62 Miss. 167; Eatman v. State, 169 Miss. 295, 153 So. 381; Elmore v. State, 143 Miss. 318, 108 So. 722; Wallace v. State, 143 Miss. 438, 108 So. 810.
The appellant, Mrs. Mamie McGann, was convicted of obtaining money under false pretenses in the sale of certain timber growing upon lands described in the indictment, which timber had been purchased from her by one E.F. Dowdy for a consideration of six hundred sixty-six dollars. After the sale, Mrs. McGann and her husband filed suit in the chancery court of Pontotoc county to enjoin the cutting and removing of the timber, for the reason that it was a homestead, and the chancery court so held and sustained the injunction against cutting and removing the timber. The appellant was, thereupon, indicted. The deed which the appellant gave contained the statement that, "The above land is no part of my homestead."
The testimony shows that she made this representation at the time she executed the deed to avoid the requirement that her husband join in the deed. At the time the deed was executed her husband was away, and the proof tended to show that they had moved from place to place in various parts of the country through a number of years, and that Mrs. McGann had some property, the title to which was involved in litigation at the time the deed to the timber was executed, and one-third of the purchase money agreed to be paid was reserved to await the disposition of the pending litigation. When the deed was executed in the office of E.F. Dowdy's attorney, it was stated that it was necessary for the husband to sign to avoid complications, and thereupon the appellant stated that the land was no part of her homestead, and that she and her husband had separated, and to use the language of a witness, "that she had run her husband off and would kill him if he returned."
The defense appeared to be insanity, and it was shown by the testimony that Mrs. McGann had been committed to the asylum as insane prior to the making of said deed on one or two different occasions. But the testimony on behalf of the state shows that, at the time of making the deed, the appellant was sane and normal.
We think the testimony as to insanity was such that the jury could rightfully find therefrom that the appellant was sane at the time of making the deed, and that, consequently, if she made the false representation alleged, which is material to the validity of the title, she knew the difference between right and wrong at least, and this is the test of responsibility for crime where insanity is the defense.
We find no reversible error and the judgment of the court below will, therefore, be affirmed.
Affirmed.