Opinion
20923.
SUBMITTED JUNE 13, 1960.
DECIDED JULY 7, 1960.
Murder. Fannin Superior Court. Before Judge Brooke. March 19, 1960.
William P. Holley, for plaintiff in error.
Sam. P. Burtz, Solicitor-General, Butt Spence, Robert K. Ballew, Eugene Cook, Attorney-General, Rubye G. Jackson, Assistant Attorney-General, contra.
1. The evidence without dispute showing that the defendant wilfully and without provocation slew the deceased under circumstances that revealed no excuse for or in mitigation of the crime, a verdict finding the defendant guilty of murder was authorized.
2. Where there is no assault on the accused or other equivalent circumstance to justify the excitement of passion, and the killing is without cause or provocation, the judge commits no error in failing to instruct the jury relative to the principles of justifiable homicide or voluntary manslaughter.
3. The charge of a statute required by law to be given the jury when given in substantially the language of such statute is a correct charge.
SUBMITTED JUNE 13, 1960 — DECIDED JULY 7, 1960.
The grand jury of Fannin County returned an indictment on January 12, 1960, charging Roy Lee Mullins with murder.
The evidence adduced at the trial as to the circumstances under which the homicide was committed was undisputed. About 2:30 on the morning of December 22, 1959, the defendant appeared at a filling station in Cherokee County with a shotgun and robbed the filling station of a small sum of money and articles of merchandise. He forced the filling station attendant, Mr. Griffith, to drive him to a point some two miles distant in the victim's automobile, where he had parked another automobile on a side road. The defendant compelled the attendant to enter the parked automobile and then they drove to another filling station in the same vicinity. There the defendant in like manner robbed the station of money and at gun point forced the attendant of the second station, Mr. Biddy, and Mr. Griffith to enter his automobile and sitting with them on the front seat of the vehicle conveyed his captives through several counties. Just before six o'clock that morning, at a point some five or six miles north of Ellijay, Georgia, he ordered both Biddy and Griffith to leave the automobile. He commanded Biddy to walk away from the car in a ditch by the roadside. When Biddy was 12 or 15 feet distant he raised the shotgun and while Biddy pleaded with him the defendant shot Biddy. He fell to the ground, and then the defendant compelled Griffith to reenter the automobile informing him that Biddy was dead. The defendant then drove away in the direction of Blue Ridge while Mr. Biddy, painfully injured but alive, hailed a passing automobile which was also traveling toward Blue Ridge. He informed the driver of the automobile, Mr. Plumlee, of the defendant's behavior, and gave a description of the automobile driven by the defendant. At about 6:30, early daylight, Mr. Plumlee overtook the defendant's automobile and took down the number of the license plate. Mr. Plumlee preceded the defendant into Blue Ridge, and at the State Patrol's Headquarters gave the patrolman in charge an account of the defendant's conduct, a description of the automobile, and the number of the license plate. The patrolman radioed this information to Mr. Brown, a policeman on duty in a police car. At that very instant the defendant drove past the police car and officer Brown perceived that it was the defendant's automobile. The officer turned on the siren and the revolving light atop the police car. The defendant observed the approach of the police car and remarked to Mr. Griffith, whom he still held captive, that the officer had seen them. He drove his automobile to the side of the road, and when the officer came up to the back door of the same, he fired upon the officer, inflicting a mortal wound. The officer fired his revolver into the automobile twice and fell to the pavement where he died. The defendant drove away, but was soon apprehended.
On the issue of insanity, the defendant submitted proof that he was charged with several offenses in Cobb County Superior Court. On October 21, 1958, he was found not guilty by reason of insanity and accordingly committed under judgment of that court to Milledgeville State Hospital. Dr. Winston Burdine, a psychiatrist, testified that he examined the accused on that occasion, found him to be schizophrenic; that he found him not neurotic, but psychotic; that in 1958 the defendant's perception and judgment were poor and he was suffering from delusions and hallucinations. The witness also testified that he examined the defendant just before the trial and there was "not too much difference" between his mental condition then and that existing in 1958. The witness gave as his opinion that the defendant's mental condition was permanent and the disorders with which he was afflicted were of a progressive nature, and, because they were progressive and permanent, his mental condition could not have improved with the passing of time; that, when he examined the defendant just prior to the trial, the defendant was still psychotic and his mental processes and thinking were still affected by delusions and hallucinations, and that the witness assumed that this condition prevailed at the time the homicide occurred. However, the witness testified that he believed the defendant knew right from wrong.
Dr. Samuel Hall, a State's witness, testified that he was an expert in psychiatry; that he observed the defendant almost daily for about a month when the latter was a patient at the Milledgeville State Hospital; that, on December 22, 1958, a board of physicians determined that the defendant was not insane and discharged him from the Milledgeville State Hospital. The witness further testified that he examined the defendant shortly before the trial and found him sane and afflicted with no form of insanity, though he would describe him as a "sociopathic personality." Dr. Hall explained that this was not a mental disease. He gave as his opinion that the defendant knew right from wrong. The witness finally, in answer to questions propounded by counsel, summarized his opinion as to the defendant condition as follows: "Your question was — was he psychotic on the 22nd day of December — Well it is possible, yes. And as to whether it is possible that he was operating under some delusion on the 22nd of December — It is possible, but I don't think it is probable though. It is possible though. From my examination of this defendant I testified that he was not suffering from delusions at the time of my examination, and no indication of a delusion — That is correct. I can not say whether he was suffering from a delusion on the 22nd day of December, because I didn't talk to him then." He recalled that the defendant in a conversation gave his own version of his thinking on the occasion of the homicide: "He said he was stopped by this officer, and I asked him what happened, and he said he killed him. I asked him did the officer give him a chance to do otherwise, and he said he had opened the door, or he went to open the door, I don't recall which, but any way, the reason I killed him I felt that he would kill me if I didn't kill him. And I asked him did he know whether he was doing wrong in killing the fellow, and he said yes, that he knew that he was doing wrong, but he felt that he had to do that to save himself."
The defendant filed a motion for new trial on the general grounds and thereafter added special grounds, numbered four, five, six and seven by amendment. The trial judge denied the motion for new trial. The defendant excepted to this ruling.
1. The only general ground of the motion for new trial insisted on is that the verdict was without evidence to support it.
It is the position of the defendant that the evidence demanded a verdict of acquittal, because the deceased was attempting to arrest him unlawfully and hence he had a right to defend himself against such arrest. The point is not well taken. The evidence showed without conflict that the deceased, an officer of the law, was performing his duty in arresting the defendant, a fugitive felon who was in the very act of escaping, and that his arrest was necessary in order to prevent a failure of justice. The arrest made without a warrant was lawful under the provision of Code § 27-207.
The defendant further insists that the evidence did not support the verdict because the evidence warranted no verdict except that of not guilty by reason of insanity.
The general rule as to the question of sanity relative to criminal responsibility in the State is: "If a man has reason sufficient to distinguish between right and wrong in relation to a particular act about to be committed, he is criminally responsible." Roberts v. State, 3 Ga. 310 (3), 327.
There is, however, a recognized exception to the general rule as found in the pronouncement of this court in Rozier v. State, 185 Ga. 317, 320 ( 195 S.E. 172): "The test of criminal responsibility in this State is that `if a man has reason sufficient to distinguish between right and wrong in relation to a particular act about to be committed, he is criminally responsible;' and there has been but one recognized exception, which is that although `a man has reason sufficient to distinguish between right and wrong . . . yet (if) in consequence of some delusion the will is overmastered and there is no criminal intent,' he is not responsible, `provided that the act itself is connected with the peculiar delusion under which the prisoner is laboring.' Roberts v. State, 3 Ga. 310; Taylor v. State, 105 Ga. 746 ( 31 S.E. 761); Hinson v. State, 152 Ga. 243 (3) ( 109 S.E. 661); Hargroves v. State, 179 Ga. 722 (3) ( 177 S.E. 561); Code § 26-301." That the defendant be impressed with delusions or hallucinations is not enough; his criminal act must stem from such mental disorder, or else his accountability for the criminal act is measured by the general test of whether he could at the time of the crime's commission distinguish between right and wrong. "While there is an exception to this rule, to the effect that although a man has reason sufficient to distinguish between right and wrong as to a particular act about to be committed, yet if, in consequence of some delusion brought about by mental disease, his will was overmastered so that there was no criminal intent with reference to the act in question, he will not be held as criminally responsible ( Roberts v. State [ 3 Ga. 310], supra; Flanagan v. State, 103 Ga. 619, 30 S.E. 550; Taylor v. State, 105 Ga. 746, 31 S.E. 764; Allams v. State, 123 Ga. 500, 51 S.E. 506; Rozier v. State, 185 Ga. 317, 195 S.E. 172), which is commonly referred to in the decisions as delusional insanity, yet in order for such defense to be available on a trial for murder, it must appear, not only that the defendant was actually laboring under a delusion ( Goosby v. State, 153 Ga. 496, 112 S.E. 467), but `that the act itself is connected with the particular delusion under which the prisoner is laboring' ( Roberts v. State, supra) and also that the delusion was as to a fact which, if true, would justify the act. Mars v. State, Ga. 43 (135 S.E. 410); McKinnon v. State, 51 Ga. App. 549 ( 181 S.E. 91); Choice v. State, 31 Ga. 424, 478; Hill v. State, 64 Ga. 453 (3a)." Barker v. State, 188 Ga. 332, 333 ( 4 S.E.2d 31).
Two psychiatrists, the only witnesses who testified concerning the defendant's ability to discern right from wrong, were agreed that he was, on the occasion of the homicide, aware that he was committing a wrongful act. The testimony was in conflict as to whether the defendant's mental processes were affected by delusions on the morning he killed the officer. However, neither of the witnesses testified that the killing was caused by or connected with a delusion and neither gave evidence from which that conclusion must necessarily be inferred. The defendant himself, in an interview with one of the State's witnesses, gave an account of the homicide. He stated, according to the witness's undisputed testimony, that he was aware that it was wrong for him to kill the deceased, and "the reason I killed him I thought he would kill me if I didn't kill him." The defendant was, at the moment he fired on the deceased, aware that he was an officer of the law in the act of apprehending him; that he had since early that morning committed two robberies, the offense of kidnapping and what he then believed to be the murder of Mr. Biddy by the roadside. He probably and correctly surmised that the officer had been informed of these crimes. He knew that probably the only way to escape punishment for these heinous felonies was to resist arrest, and that in such circumstances either he or the officer was likely to be killed.
The admissions of the defendant removed all doubt that he knew that he was committing a wrong in killing the policeman, and that he acted, not as a result of a delusion, but upon a rational premeditated design in committing the homicide. There is no merit in this insistence that the verdict is not supported by the evidence.
2. Grounds 4 and 5 of the amended motion for new trial complain of the court's failure to charge the jury on the principles of law applicable to justifiable homicide and voluntary manslaughter. The case of Mullis v. State, 196 Ga. 569 ( 27 S.E.2d 91) was cited as authority for this proposition. In that case the evidence made an issue of fact as to whether an officer was unlawfully arresting the defendant. In the instant case the evidence is conclusive that the arrest was legal, and that the deceased did nothing to indicate that he intended or was endeavoring to do the defendant bodily harm.
3. The 6th ground of the amended motion for new trial was abandoned.
4. The 7th ground of the amended motion complained that the court erred in charging the jury: "Then the form of that verdict would be — We, the jury, find the defendant not guilty because of insanity and lack of criminal responsibility, and in that event the court would commit him to the State Hospital in Milledgeville and he would remain there until discharged by law under the rules of the hospital."
The criticism of this charge is that it was incorrect as an abstract principle of law, was confusing and led the jury to believe that patients were discharged from the Milledgeville State Hospital under the rules of the institution and not in the manner prescribed by the Georgia Code of 1933.
The charge, substantially in the language of Code § 35-202 relating to the manner in which patients are discharged from the Milledgeville State Hospital, was a correct statement of the law and was not confusing. The fact that the Code section has been amended since the trial is of no consequence in deciding that the charge was a correct statement of the law as it then existed.
Judgment affirmed. All the Justices concur.