Opinion
No. 39537.
January 17, 1955.
1. Rape — evidence — sustained conviction.
Evidence was sufficient to sustain conviction for rape. Sec. 2358, Code 1942.
2. Rape — compulsive force — fear.
Actual physical force or resistance is not required where female yields through fear under a reasonable apprehension of great bodily harm, and, where she so yields, there is compulsive force and the act is rape.
3. Criminal law — confessions — admissible.
In such case, where there was no evidence that defendant's confessions were not voluntary, or that he had been overawed, frightened, or intimidated by officers, confessions were admissible.
4. Juries — death penalty — conscientious convictions against — duty of Court to inquire.
Where death penalty can be imposed by jury, it is duty of Judge to inquire of jurors whether they have conscientious convictions against inflicting death penalty.
5. Juries — same — same — juror excused — after acceptance by State.
Where a juror in capital case, while being questioned by defendant's attorney and after his acceptance by State, said that he had a strong conviction against imposition of capital punishment, Trial Judge properly excused juror.
6. Criminal law — evidence — witness's opinion excluded — insanity not pleaded.
In such case, where defendant did not plead insanity, witness's opinion of defendant's mental age and his peculiarities was properly excluded.
7. Criminal law — criminal responsibility — test.
The test of criminal responsibility is accused's ability, at time of commission of acts, to realize and appreciate the nature and quality thereof and to distinguish right and wrong, and the defense of irresistible or uncontrollable impulse is unavailable, unless the impulse springs from mental disease existing to such a high degree as to overwhelm the reason, judgment, and conscience.
8. Criminal law — new trial — newly discovered evidence — defendant sane.
In such case, evidence adduced on hearing for new trial on ground of newly discovered evidence supported Trial Court's finding that defendant was sane.
9. Criminal law — new trial — grand jury — Negroes excluded.
Evidence adduced on motion for new trial on ground that no Negroes had been summoned to serve on panel from which grand jury and petit jury were drawn in case in which defendant was a Negro established that there had been no systematic exclusion of Negroes.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Harrison County; LESLIE B. GRANT, Judge.
R.G. Wigginton, Gulfport, for appellant.
I. The appellant is a Negro. There were no Negroes summoned to serve on the panel from which the Grand Jury that indicted the appellant was drawn.
II. There were no Negroes summoned on the panel from which the jury that tried and convicted the appellant was drawn.
III. The Court erred in admitting the alleged confession of the defendant over the objection of his counsel, the said confession having been obtained by a large number of police and other officers just about ten minutes after the appellant's confinement in jail, as said confession was obviously obtained from the appellant, who was only seventeen years of age, when he was naturally overawed, frightened and intimidated, and in no mental and emotional condition to make a voluntary confession. The Court also erred in admitting the alleged second confession.
IV. The Court erred in excusing Preston Scarborough from the jury over the objection of appellant's counsel after he had been qualified by the Court and accepted by the State and was about to be accepted by the appellant; that the fact that said juror volunteered information that he had a deep prejudice against capital punishment did not disqualify him after his acceptance, as he had previously stated that he would inflict capital punishment if the facts justified such; that every civilized juror has a prejudice against capital punishment, which accounts for its rarely being inflicted by a jury; that the Court's action in excusing said juror substantially prejudiced the appellant, in that the inevitable impression made on the remaining jurors was that their belief and readiness to inflict capital punishment was their most important qualification; that the Court's act unintentionally stimulated prejudice in favor of capital punishment and rendered the death penalty certain; and on the voir dire examinations the jurors were asked if they would inflict the death penalty if appellant was proven guilty as charged, such questions by the District Attorney being highly prejudicial.
V. The verdict was against the overwhelming weight of the evidence. The evidence showed without conflict that the prosecuting witness failed to make the effort the law requires to prevent her ravishment, and certainly failed to use the means in her power to prevent it; that such fact was ignored by the jury in reaching the verdict and fixing the punishment at death, and the Court erred in refusing the instruction to the effect that that is the law.
VI. The verdict, and particularly the punishment fixed, was the result of bias, passion, and prejudice on the part of the all-white jury against the Negro appellant.
VII. The Court erred in granting the instructions for the State, and refusing to grant new trial on new evidence presented.
VIII. Newly-discovered evidence that the defendant was not legally sane at the time of the commission of the said offense and at his trial, and that he was insane as applied to said particular crime of rape at the time of the alleged commission of said offense, during the trial therefor, and at the present time; that the appellant nor his attorney knew or realized that said appellant was so insane, nor could they, or either of them, have discovered such fact by due diligence and effort on their part; that such evidence could have been obtained only by a mental or psychological examination and a clinical interview of the appellant by a psychiatrist, whose services the appellant was without any means whatever to obtain; that his attorney was appointed by the Court to defend him, but furnished no means of procuring evidence which could be obtained only by the appellant's examination by a mental expert or psychiatrist; that after the trial, conviction, and sentence of the appellant to death, the financial means of employing a psychiatrist to make an examination of the appellant was voluntarily made available to the appellant by a local white citizen who after the appellant's trial and sentence of death imposed upon him, learning of the facts, believed the appellant was irresponsible, mentally and emotionally, and incapable of knowing right from wrong respecting the alleged crime of rape, and could not therefore be legally guilty of the alleged crime; that with the means voluntarily afforded him, the appellant has been given a psychological examination by Dr. H.L. Deabler, a clinical psychologist, who found him to be markedly immature, without a developed or mature conscience, and without a developed sense of right and wrong; that said immaturity, lack of conscience and sense of right and wrong was not the result of the seventeen-year-old appellant's own volition, but the result of faulty and unhealthy influences to which he was subjected during his friendless and tragic childhood. The newly discovered evidence entitled the appellant to a new trial, and will be made available to the Court on the hearing of this assignment of errors.
IX. The Court erred in ignoring the testimony of Dr. Deabler as to appellant's mental condition and his lack of knowledge as to right and wrong, as to the crime charged, and should have granted a new trial on that ground alone, if not on any of the other errors shown.
Wm. E. Cresswell, Asst. Atty. Gen., Jackson, for appellee.
I. Objection to the jury panels, Grand and Petit, were not timely made and such objections came too late in the motion for a new trial; however, in any event, the proof is insufficient to sustain any finding of the systematic exclusion of Negroes from such panels. Durr v. State, 214 Miss. 658, 59 So.2d 304; Flowers v. State, 209 Miss. 86, 41 So.2d 352; Hill v. State, 89 Miss. 23, 42 So. 380; Patton v. State, 201 Miss. 410, 29 So.2d 96, 203 Miss. 265, 33 So.2d 456, 332 U.S. 463, 92 L.Ed. 76, 68 S.Ct. 184, 1 A.L.R. 1286; Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664; Secs. 1784, 1796, 1798, Code 1942.
II. The Trial Court properly admitted evidence of the oral statement and two confessions made by appellant after his arrest.
III. The Trial Court correctly excused the juror Scarborough, after he, in response to questioning by the District Attorney upon the voir dire, stated that he had no conscientious scruples against the infliction of capital punishment, and the juror was accepted by the State. Borowitz v. State, 115 Miss. 47, 75 So. 761; Mabry v. State, 71 Miss. 716, 14 So. 267; Phenizee v. State, 180 Miss. 746, 178 So. 579; Shimniok v. State, 197 Miss. 179, 19 So.2d 760; Sullivan v. State, 155 Miss. 629, 125 So. 115.
IV. The verdict in this case is amply supported by the evidence, there being no conflict whatever therein. McGee v. State (Miss.), 40 So.2d 160; Milton v. State, 142 Miss. 364, 107 So. 423.
V. The evidence presented by appellant upon the question of insanity was not timely presented nor pleaded, and should not be considered by this Court; but, in any event, such evidence was insufficient to show that appellant could not distinguish between moral right and wrong as to the particular act with which he was charged.
APPELLANT IN REPLY.
I. If the evidence shows, as it does show, that appellant is afflicted with some serious mental disease or psychological disorder (call it what you will) which would render him incapable of realizing and appreciating the nature and quality of his acts, or of distinguishing right from wrong in respect to his acts, then no matter how horrible and revolting the crime, there is no legal responsibility for it. That is the law of this State, and no appeal to prejudice can alter that fact. Bishop v. State, 96 Miss. 846, 52 So. 21; Carter v. State, 199 Miss. 871, 25 So.2d 470; Cole v. State, 170 Miss. 800, 150 So. 757; Eatman v. State, 169 Miss. 295, 153 So. 381; Ford v. State, 73 Miss. 734, 19 So. 665; Magee v. State, 200 Miss. 861, 27 So.2d 767, 28 So.2d 854; Ratcliff v. State, 201 Miss. 259, 29 So.2d 321.
Walter Johnson, the appellant, was convicted in the Circuit Court of Harrison County of the crime of rape, and was sentenced to suffer the death penalty. Code of 1942, Sec. 2358. The crime occurred around 10:30 P.M. on the night of March 30, 1954, in the City of Biloxi, Harrison County, Mississippi. It is undisputed that appellant committed the offense. The prosecutrix, a young white married woman, testified that appellant had a knife and threatened the life of herself and her sister, with whom she was going home, unless she submitted to his demands.
She unequivocally identified Johnson as the culprit, and she had ample opportunity to observe him on the occasion in question. Her sister also definitely identified appellant. Dr. W.A. Tisdale, who examined the prosecutrix shortly after the rape occurred, testified concerning the condition of her body after the rape, and his examination fully confirmed her statements. Appellant, a Negro, was a soldier stationed at Keesler Field. Corporal Zike arrested him when he returned to Gate Number One around 11:05 P.M. that night, and took a knife from him. Appellant made an oral confession to Sergeants Etheridge and Hill of the Air Force Police, in which he admitted the crime and the use of the knife which was taken from him as the instrument of coercion. Assistant Chief of Police Walter Williams and Captain Charlie Comeaux, of the Biloxi Police Department, testified that appellant signed two separate written confessions of the crime, one dated March 30, 1954, and another April 7, 1954; and that these confessions were wholly voluntary and made without any coercion or promise of leniency. They admitted appellant's premeditated, criminal rape of the prosecutrix. Appellant did not testify, either on the preliminary hearing concerning the confessions or on the merits. He offered no evidence and made no issue as to the admissibility of the confessions. Since there is no dispute as to the facts, we will not undertake to outline the repulsive details of appellant's crime.
(Hn 1) Appellant argues that the verdict of the jury is against the great weight of the evidence. However, this record contains no dispute of the State's testimony and Johnson's two confessions that he committed the crime. Apparently the argument on this point is the claim that the prosecutrix did not offer sufficient resistance to the commission of the crime. But the record shows that she and her sister, who was present at the time, were rendered incapable of physical resistance because of the fact that appellant had with him a large knife with which he threatened to kill both the prosecutrix and her sister if they resisted or cried out. (Hn 2) Where the act is accomplished after the female yields through fear caused by immediate threats of great bodily injury, there is compulsive force and the act is rape. Actual physical force or actual physical resistance is not required where the female yields through fear under a reasonable apprehension of great bodily harm. Here the threats were made before the act through the exhibition of, and threat to use, a deadly weapon, a knife. Actual physical resistance by the female is not required in such circumstances. 75 C.J.S., Rape, Sec. 15; Milton v. State, 142 Miss. 364, 107 So. 423 (1926); McGee v. State, 40 So.2d 160, 171 (Miss. 1949).
(Hn 3) The trial court committed no error in admitting into evidence the two confessions of appellant. It is undisputed that appellant was fully advised as to his rights and that he made the statements voluntarily, without coercion of any kind. Appellant did not testify upon the preliminary examination as to their admissibility and offered no evidence that such statements were not voluntary. There is no evidence that he was overawed, frightened or intimidated by the officers, as appellant asserts.
On the voir dire examination, the juror Scarborough had been accepted as a juror by the State. He had testified that he had no conscientious scruples against the imposition of capital punishment. While being questioned by the defendant's attorney, Scarborough changed his prior testimony, and said that he had a strong conviction against the imposition of capital punishment. The court then interrogated him and was advised by him that he did not believe in capital punishment. Thereupon the trial judge excused Scarborough as a juror, and stated that he wanted the jury to understand that the court was taking no part in the decision on the facts, that whether appellant was guilty, and, if so, the type punishment he should receive, were questions for the jury, but that since Scarborough did not believe in capital punishment, that was a disqualification in a capital case. Appellant says that the effect of the court's action was to advise the jury that their readiness to inflict capital punishment was their most important qualification, and that this action prejudiced the jury against appellant.
(Hn 4) In cases where the death penalty can be imposed by a jury, it is the duty of the judge to inquire of the jurors whether they have conscientious convictions against inflicting the death penalty. Phenizee v. State, 180 Miss. 746, 178 So. 579 (1938). A somewhat similar case to the instant one on this question is Lewis v. State, 9 S. and M. 115 (Miss. 1847). The court was performing its duty in this respect, and committed no error in acting as it did. (Hn 5) We find no prejudice to appellant resulting from this incident.
(Hn 6) Appellant made no point either before or during the trial that he was insane and incapable of distinguishing between right and wrong as to the particular acts with which he was charged, or at the time of the trial. He filed no suggestion of insanity nor any other pleading raising that issue before or during the trial. He did not testify in his own defense, and the only witness he offered was Captain Robert W. McGill, the commanding officer of the Student Squadron of which appellant was a member. He testified that appellant came to the squadron on January 1, 1954, and that he is 17 years of age. (18 now.) He knew nothing about the alleged crime. Appellant's counsel asked McGill his opinion of appellant's mental age, and what peculiarities he displayed. Appellant's attorney stated that he was not pleading insanity. After that statement the trial court sustained an objection to those questions. If appellant had pleaded insanity, they would have been proper. In fact, the district attorney on the trial conceded that. However, since in the trial on the merits appellant's counsel advised the court that he was not pleading insanity, the court was not in error in sustaining that objection to the stated questions to McGill. Appellant asked for and obtained no instructions on the question of sanity, and did not submit that issue to the jury.
Appellant filed a motion for a new trial, which set up two new points not previously raised by him: (1) Newly discovered evidence which would show that appellant was insane at the time of the crime, during the trial, and subsequent thereto, and that Dr. H.L. Deabler, a clinical psychologist, had examined appellant and made this diagnosis; (2) that no Negroes were summoned to serve on the panel from which the grand jury and petit jury were drawn.
On the hearing of this motion for a new trial, appellant offered, to support his contention of insanity, Dr. H.L. Deabler. He is the chief clinical psychologist at the Veterans Administration Hospital in Gulfport. The substance of his lengthy testimony is that appellant has a gross over-development of the sexual impulse; and it has resulted in his taking on feminine ways and being attracted to feminine things. On the occasion of this rape, appellant was wearing women's clothing, including underwear. Dr. Deabler said that appellant had failed to develop a sense of right and wrong or a "healthy conscience"; that appellant at the time of the rape had "a strong uncontrollable compulsion" and therefore was not conscious of right and wrong. His acts are characterized by transvestitism and voyeurism.
However, he stated that he had made a psychodiagnostic test to determine appellant's sanity, and that this test showed him to be "sane in our sense, in contact with reality." He was not psychotic and was not insane, from a psychologist's point of view, but Dr. Deabler thought that he was legally insane, since he thought that appellant had such an uncontrollable compulsion that he did not know the difference between right and wrong. Appellant's intelligence is average for a 17-year-old boy, in terms of ability to think, to handle school work "and that sort of thing." Dr. Deabler had not read appellant's confession and had gained his data largely from a two-hour conference with appellant, and from talking to his attorney. The fact that after appellant originally approached the prosecutrix and her sister, he walked away from them temporarily when a truck approached, indicated a fear of being caught, but the doctor did not believe it indicated a sense of doing something wrong. Appellant is not suffering from any mental disease, but a psychological disorder.
In rebuttal of this testimony, the State offered the chief of police of Biloxi, the assistant chief of police, and a policeman, all of whom had talked with appellant on a number of occasions since he had been in custody, and all of whom said that in their opinions he was entirely sane and knew the difference between right and wrong; and that they had discussed the crime with appellant, and he appeared to realize that what he had done was wrong. In overruling the motion for a new trial, the court stated that in view of the testimony of the State's witnesses, the psychologist, and his own observation of the defendant, he was satisfied that the net result of their testimony and of the evidence is that defendant knew right from wrong and was and is sane.
(Hn 7) We think that this conclusion of the trial court is amply warranted. This Court rejected the "irresistable impulse" test of sanity as early as 1879, in Cunningham v. State, 56 Miss. 269. To the same effect are Garner v. State, 112 Miss. 317, 73 So. 50 (1916); Smith v. State, 95 Miss. 786, 49 So. 945 (1909); Eatman v. State, 169 Miss. 295, 153 So. 381 (1934); Anno. 70 A.L.R. 659, and 173 A.L.R. 391; 14 Am. Jur., Criminal Law, Sec. 35; 15 Am. Jur., Criminal Law, Sec. 327; 22 C.J.S., Criminal Law, Sec. 58. We apply the test of the leading English case known as M'Naghten's case, which is the majority rule. 14 Am. Jur., Criminal Law, Secs. 38-40; 22 C.J.S., Criminal Law, Sec. 59; Rogers v. State, No. 39,466, decided January 10, 1955. It is summarized in Eatman v. State, supra:
"In this state, as generally in the several states, the rule of law is that the test of criminal responsibility is the ability of the accused, at the time he committed the act, to realize and appreciate the nature and quality thereof — his ability to distinguish right and wrong. Smith v. State, 95 Miss. 786, 49 So. 945, 946, 27 L.R.A. (N.S.) 461, Ann. Cas., 1912A, 23. And the defense of want of inhibitory powers, or as otherwise expressed, the defense of irresistible or uncontrollable impulse was declared in that case to be unavailable, unless the uncontrollable impulse spring from a mental disease existing to such a high degree as to overwhelm the reason, judgment, and conscience, in which case, as the court adds, the accused would be unable to distinguish the right and wrong of a matter."
The testimony of appellant's own witness, Dr. Deabler, fails to meet these criteria. In fact, Deabler applied the so-called irresistible impulse test, which this Court has rejected. On the contrary, the testimony of the State's witnesses, who have had opportunity to form an opinion about appellant's sanity, amply justified the trial court's finding of sanity and its overruling of the motion for a new trial. (Hn 8) Considering the entire record on this appeal, including appellant's two signed confessions with their logical and intelligible descriptions of his crime, we think that the trial court was correct in this respect, and certainly it cannot be said to be manifestly wrong.
(Hn 9) Appellant also argues that there has been a systematic exclusion of, and a discrimination against, Negroes in serving on the grand jury and the petit jury, in violation of the rule in Patton v. State, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76, 1 A.L.R. 2d 1286 (1947). Without detailing the testimony of the only witness offered on this issue, which was not raised until the motion for new trial, it is sufficient to say that the testimony of the Circuit Clerk of Harrison County, Ewert Lindsey, shows without dispute that there has been no systematic exclusion of Negroes from juries in Harrison County, and that, in fact, at practically every term of court Negro jurors are drawn out of the box; and that no effort was made to discriminate either in selecting jurors for the box or on the particular grand jury and petit jury involved in this case, but appellant makes no showing whatever that there was any systematic exclusion of the names of Negroes from the jury box or panels. In fact, the evidence offered by appellant is to the contrary and negatives his allegation.
For these reasons the judgment of the Circuit Court is affirmed.
Affirmed, and Thursday, March 3, 1955, is fixed as the date for execution of the death sentence in the manner provided by law.
All nine of the Judges concur.
ON MOTION OF STATE TO SET NEW DATE FOR EXECUTION
July 15, 1955 81 So.2d 558
Appellant Walter Johnson was convicted in the Circuit Court of Harrison County of the crime of rape, and was sentenced to suffer the death penalty. On January 17, 1955, this judgment of conviction was affirmed by this Court, and March 3, 1955, was fixed as the date for execution of the death sentence. 76 So.2d 841. Appellant's subsequent suggestion of error was overruled. Johnson then appealed to the Supreme Court of the United States, by petition for writ of certiorari, and execution of the judgment accordingly was stayed. On May 31, 1955, the United States Supreme Court, in Cause No. 741, denied his petition for a writ of certiorari.
Since the date fixed for execution of the sentence in our decision in 76 So.2d 841 has passed, the State has filed a motion requesting the Court to set a new date for execution of the death sentence. No response has been filed to this motion. After careful consideration, we conclude that the motion should be and it is sustained, and Friday, August 19, 1955, is fixed as the date for execution of the death sentence rendered against appellant, Walter Johnson, in the manner provided by law.
Motion of State to set new date for execution sustained, and Friday, August 19, 1955, fixed as date for execution of death sentence.
All nine of the Judges concur.