Summary
In Shipp, the district attorney moved the trial court for a nolle prosequi on a criminal defendant's indictment for larceny after the defendant was diagnosed before trial with schizophrenia by psychiatrists at the state hospital.
Summary of this case from Williams v. StateOpinion
No. 38520.
December 1, 1952.
1. Criminal law — insanity.
No insane person shall be tried, sentenced to any punishment, or punished for any crime while he continues insane.
2. Criminal procedure — insanity — preliminary hearing before jury.
If the showing before the trial judge is sufficient to engender a reasonable probability that the defendant is then insane, that issue must be preliminarily submitted to a jury.
3. Insanity — preliminary hearing — proof before trial judge.
Where every doctor and expert, seventeen in number, who had observed and examined the accused, was of the opinion that he was insane, it was reversible error to deny, in the face of this overwhelming proof, a preliminary hearing, on the issue of his sanity, because and solely because the trial judge from his observation of the accused in the courtroom was of the opinion that there was no good reason for a preliminary hearing.
4. Larceny — evidence — hearsay.
In a prosecution for larceny testimony of officers as to the results of their investigation and as to what other people told them and pointed out to them in the course of such investigation was hearsay and inadmissible.
5. Larceny — indictment — amendment — description of property.
An indictment for the larceny of a calf was properly amendable by the addition of the word "red" in the description of the calf. Sec. 2532, Code 1942.
6. Criminal procedure — nolle prosequi — consent of court necessary.
Although the proof was overwhelming that the accused was insane, it was not reversible error to deny the motion of the prosecuting attorney for a nolle prosequi, since no such order may be entered without the consent of the court. Sec. 2566, Code 1942.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Jefferson County; JAMES A. TORREY, Judge.
Berger Callon, Trully Trully and Corban Corban, for appellant.
I. The court erred in allowing the State of Mississippi to amend the indictment over objections of appellant.
We feel that the original indictment was vague, the description indefinite in that it did not give any color, and the amendment, charging the defendant with stealing a red yearling, constituted a new offense.
II. The court erred in overruling defendant's motion to submit preliminarily to the jury the question of the sanity vel non of the defendant, and
III. The court erred in submitting to the jury the question of sanity vel non together with the question of defendant's sanity at the time of the commission of the alleged crime and the general guilt or innocence of the defendant. Hawie v. State, 125 Miss. 589, 88 So. 167; Howie v. State, 121 Miss. 197, 83 So. 158.
In the Hawie case, supra, the Court said: "`It is a rule of universal application, and founded on the broad principles of humanity, that no insane person shall be tried, sentenced to any punishment, or punished for any crime or offense, while he continues in that state.' 10 Enc. P. P. 1218."
In Mabry v. Hoye, 124 Miss. 144, 87 So. 4, the Court laid down the rule, later reversed in Byrd v. State, 179 Miss. 336, 175 So. 190, to the effect that an escapee from a state hospital cannot be required to surrender to a circuit court on a habeas corpus trial, but, in the Mabry case, the Court again reiterated the rule never deviated from: "A lunatic cannot be tried for a crime." Williams v. State, 205 Miss. 515, 39 So.2d 3.
IV. The court erred in admitting prejudicial hearsay evidence over objection of the defendant.
It would be useless for us to cite the numerous cases holding hearsay evidence inadmissible and, while it is true that this Court is reluctant to reverse a case solely for the admission of improper, hearsay evidence, nevertheless where the evidence is not only hearsay but highly prejudicial and used by the State to prove its case in chief and particularly in view of the fact that the defendant was insane, was not able to make any defense, we think its admission reversible error.
In the case of Simmons v. State, 206 Miss. 534, 40 So.2d 289, the sheriff, without objection, told the jury what others told to him, not in the presence of the appellant, about facts of the case. In commenting on this, the Court said: "We refer to this merely because it should not be repeated in the new trial which we are granting, since it was let in without objection by appellant. The only way such evidence could become competent would be its use to contradict the persons quoted, * * *, after proper predicate laid for that purpose."
V. The court erred in allowing lay witnesses to testify as to the sanity of the defendant when the evidence showed they were not sufficiently acquainted with the defendant to express an opinion, and for the further reason that the questions were not properly framed and no predicate laid.
VI. The court erred in overruling defendant's motion to exclude the evidence for the State and instruct the jury to find the defendant not guilty at the close of the State's evidence.
VIII. The court erred in overruling the defendant's motion to exclude the evidence for the State and direct the jury to find the defendant not guilty at the close of all the evidence.
IX. The court erred in refusing to overrule defendant's motion to instruct the jury to find the defendant insane at the time of the trial.
XIII. The court erred in refusing to grant defendant's instruction No. 1, which instructed the jury to find the defendant not guilty.
Points V, VI, VIII, IX and XIII will be consolidated for the purposes of this argument.
Once the issue of insanity is raised, burden of proof never shifts from the State. In Waycaster v. State, 185 Miss. 25, 187 So. 205, Justice McGehee announced the proper rule as to the burden of proof when insanity is the issue and this rule has never been departed from by this Court. In that case, Justice McGehee said: "The trial commenced with the presumption that Waycaster was sane. If nothing in the testimony either on behalf of the state or defendant had suggested otherwise, there would have been no obligation on the state to establish his sanity. However, when such testimony as that hereinbefore mentioned was offered either by the State or defendant sufficient to suggest a reasonable possibility to the mind of any juror that he may not have been sane at the time of the killing, or to raise a reasonable doubt in regard thereto, the State was then required to establish the fact of sanity independently in that behalf."
A person who did not know the difference between right and wrong could commit no crime. This Court has gone so far as to hold, in Edwards v. State, 178 Miss. 696, 174 So. 57, that drunkenness is a defense, where specific intent is required.
Dugas Shands, Assistant Attorney General, for appellee.
I. Discussion of matters preliminary to the trial and covered by Sections X and VIII of appellant's brief — The court's failure to nolle prosequi the indictment and the overruling of defendant's motions for a continuance — and Section IV of appellant's brief on hearsay evidence.
II. The amendment to the indictment and the order of the court permitting same was proper. Davis v. State, 181 Miss. 239, 179 So. 740; Grimsley v. State, (Miss.), 60 So.2d 509.
III. Appellee's observation upon Sections V, VI, VII, IX and XIII of appellant's brief. Black v. Black, 209 Miss. 353, 46 So.2d 805.
IV. Testimony of the witnesses on the merits — the guilt or innocence of the defendant of the crime charged.
V. Testimony of witnesses for the defense on the issue of sanity or insanity of the defendant.
VI. The verdict of the jury in the lower court is sustained by the evidence, or is not contrary to the overwhelming weight of the evidence on the issue of guilt or innocence of the defendant.
VII. The appellant, defendant in this case, was sane — knew difference between right and wrong — action of lower court and jury should be affirmed upon all matters dealing with insanity. Black v. Black, 209 Miss. 353, 46 So.2d 805; Williams v. State, 205 Miss. 515, 39 So.2d 3, 49 So.2d 261.
Russell Shipp was convicted of the larceny of a calf and was sentenced to serve a term of five years in the state penitentiary. From the judgment entered he appealed.
A number of errors are assigned, but we notice only the following: (1) the refusal of the court to inquire into and determine the sanity of the appellant preliminarily before the trial on the merits; (2) the admission of certain evidence; (3) the allowance of an amendment to the indictment; and (4) the refusal of the court to sustain the motion of the District Attorney to allow a nolle prosequi.
The calf was stolen about January 6, 1951. Shipp was reared in Calhoun County, but owned a place in Jefferson County. As a result of an extended investigation, he was arrested some days later, and gave bond for his appearance to await the action of the next grand jury. On January 18, an application was filed in the chancery court of Calhoun County to have him adjudged insane. The writ therefor was issued, together with notice to two physicians, who made their report, certifying that, in their opinion, Shipp was suffering from a mental or nervous disorder and was in need of treatment, etc., at a mental institution. On the same date, the court issued its order, committing him to Whitfield, and he was forthwith delivered to the institution. On February 2, he was taken before the full staff, consisting of 11 doctors, three externes and one psychiatrist. Many questions were asked and answers returned, all of which appear in the record. At the conclusion, eight of the doctors stated affirmatively in the record that the patient was suffering with schizophrenia, catatonic type. Elsewhere in the record it was shown that all of the staff actually concurred in that diagnosis.
The indictment was returned on February 5, and two days thereafter, a motion for a continuance was made on the ground that Shipp was then insane, and that he was a patient and inmate of the institution at Whitfield. On the same date, the State sought the appointment of, and the court appointed, Dr. Willard L. Waldron, a pyschiatrist, to make an independent examination. Thereafter Dr. Waldron made his report and concurred in the findings of the Whitfield staff. The District Attorney attached this report, together with the certificate of Dr. F.A. Latham, of the Whitfield staff, which showed that all of the fourteen doctors agreed on the diagnosis of schizophrenia, catatonic type, to his motion in which he asked the Court for permission to enter a nolle prosequi. The motion was overruled, and the case was continued for the term.
At the September 1951 term of the court, a certificate from Dr. W.L. Jacquith, Superintendent of Whitfield, showing that Shipp was a patient of the institution and suffering with the same ailment, was filed, and the case was again continued.
At the February 1952 term, the court overruled a motion by appellant's counsel to dismiss or abate the prosecution on account of Shipp's insanity. Counsel then made a motion for a trial preliminarily as to the present insanity of the defendant on the contention that he was then incapable of making a defense. All of the foregoing facts were before the court on this motion, together with the entire record at Whitfield. The history of the case showed Shipp's three years in the Armed Forces, his subsequent graduation from Mississippi State College, and a recapitulation of his various acts and unusual conduct for about a year previous to the alleged larceny. Suffice it to say, every doctor and expert who had observed or examined him — a total of 17, most of whom were in the employ of the State — was of the opinion that he was insane. It is impossible to conceive how stronger proof of insanity could have been produced. In the face of this overwhelming proof, the court overruled the motion and entered an order which stated that the "Court having observed the defendant in the Court room and his demeanor during the hearing finds that there is no good reason for a preliminary hearing to be held before the trial in this case on the issues involved including sanity," and directed the defendant to be brought to trial on the three issues of present insanity, insanity at the time of the commission of the offense, and as to guilt or innocence.
In American and English jurisprudence no human being may be tried or punished for crime while he is insane. The opinion in the case of Hawie v. State, 121 Miss. 197, 83 So. 158, collated numerous authorities and quoted with approval certain excerpts therefrom. Some of those quotations are as follows: "If a man in his sound memory commits a capital offense, and, before arraignment for it, he becomes mad, he ought not to be arraigned for it, because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defense? If after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced, and if, after judgment, he becomes of nonsane memory, execution shall be stayed; for, peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution." Cooley on Blackstone, Vol. IV, p. 24. . . . "The true reason why an insane person should not be tried is that he is disabled by an act of God to make a just defense if he have one. As is said in 4 Harg. Stat. Tr. 205, `There may be circumstances lying in his private knowledge, which would prove his innocency, of which he can have no advantage, because not known to the persons who shall take upon them his defense.' The most distinguished writers on criminal jurisprudence concur in these humane views, and all agree that no person, in a state of insanity, should ever be put upon his trial for an alleged crime, or be made to suffer the judgment of the law. A madman cannot make a rational defense, and as to punishment, furiosus solo furore punitur. . . . the humanity of the law of England had prescribed that no man should be called upon to make his defense, at a time when his mind was in such a situation that he appeared incapable of doing so; that however guilty he might be, the trial must be postponed to a time when, by collecting together his intellects, and having them entire, he should be able so to model his defense, if he had one, as to ward off the punishment of the law; and it was for the jury to determine whether the prisoner was then in that state of mind. Shelf. 468.' Freeman v. People, 4 Denio (N.Y.) 9, 47 Am. Dec. 216. . . . `The evidence strongly indicated, perhaps was conclusive, of the prisoner's insanity at the time of the trial. Under such circumstances, it was not proper that he should have been put upon his trial. By the humanity of the common law, a party who was insane at the time of the trial could not be arraigned. If he became insane after his conviction, he could not be executed while he remained thus demented.' Jones v. State, 13 Ala. 153. . . . `If an indicted person is not sane, the court cannot go on with the case; or if he becomes insane after the trial commences, he can neither be sentenced, or, if sentenced, punished, while his insanity continues.' Bishop's New Criminal Law, vol. 1, par. 396."
So the Court said that "if the defendant in this case was insane, the court was in error in placing him upon trial and in pronouncing the judgment of conviction." And since the petition alleged that Hawie was insane at the time of trial and the demurrer admitted the truthfulness of the allegation, the Court reversed the conviction.
On the return of the case to this Court, reported as Hawie v. State, 125 Miss. 589, 88 So. 167, it appeared that a trial was had before a jury as to Hawie's sanity at the time of his first trial, and the jury found that he was insane. At the next term, the court declined to inquire again into his sanity, but proceeded to a trial on the merits. This Court held that, before trying Hawie again, his mental status should have been inquired into, and it should have been determined that he was then sane, otherwise he could not be tried as to his guilt or innocence. The opinion cited with approval 10 Enc. P. P. 1218, as follows: (Hn 1) "It is a rule of universal application, and founded on the broad principles of humanity, that no insane person shall be tried, sentenced to any punishment, or punished for any crime or offense, while he continues in that state."
(Hn 2) If the showing before the trial judge is sufficient to engender a reasonable probability that the defendant is then insane, that issue must be preliminarily submitted to a jury. "But if there be any doubt whether the party be compos or not this shall be tried by a jury. Wendell's Blackstone's Commentaries, vol. 4, p. 25." First Hawie case, supra.
In Williams v. State, 205 Miss. 515, 39 So.2d 3, it was said: "The trial of a defendant, when his mind is so clouded that he cannot remember and intelligently relate what occurred at the time of the commission of the alleged offense, is a denial of due process and contrary to public policy, and when it appears to the trial court that there is a probability that defendant is incapable of making a rational defense, the trial should not proceed until defendant's mental condition has been investigated and it appears he is sufficiently rational to make defense. Carter v. State, 198 Miss. 523, 21 So.2d 404; Hawie v. State, 121 Miss. 197, 83 So. 158, 10 A.L.R. 205. We urge upon the trial courts to observe this constitutional right of defendants, with meticulous care, and submit to the jury, preliminarily, the issue of the defendant's sanity in all cases where there is a probability that defendant is incapable of making a rational defense." At a former trial, it is true, Williams, on a suggestion of present insanity, was tried on that issue alone, adjudged insane, and committed to Whitfield. However, a re-examination of that record discloses that, on the first trial, he was shown to be suffering with acute alcoholism. The evidence for the defendant came from a local doctor and lay evidence, and the State offered only lay testimony. However, when he was examined by the staff at Whitfield, no psychosis whatever was found, and the whole staff were of the opinion that he was not then insane, and had not been insane, and, after only about 30 days, he was discharged from the institution. Besides, the Superintendent of Whitfield testified that he had talked with Williams before the trial, and that he was sane. It must be assumed that the trial judge was fully apprised of Williams' condition when he dictated into the record that he had observed the accused in the courtroom, and that there was "no good reason, legal or otherwise, for a preliminary hearing to be had as to sanity or insanity of this man before the trial of this case on all issues."
In Davis v. State, 151 Miss. 883, 119 So. 805, the suggestion of insanity was signed, but not sworn to, by his counsel. Moreover, he did not present an affidavit or offer witnesses to prove his present insanity or inability to conduct a rational defense. This Court held that the mere motion alone was not sufficient to require the court to halt the trial and conduct a preliminary.
See also Luther Musselwhite v. State, No. 38,051, decided by this Court November 10, 1952, 7 Adv. S. p. 15.
(Hn 3) The trial court's refusal to try the issue of insanity preliminary was reversible error.
(Hn 4) Certain evidence of the officers wherein they testified to the results of their investigations and as to what other people told them and pointed out to them in the course of their investigations was objected to, but the objections were overruled. This evidence was hearsay and inadmissible. It was prejudicial and damaging, and its admission is a sufficient ground alone to award a new trial, even if the court had not committed reversible error in refusing to try the issue of insanity preliminarily. (Hn 5) As to the amendment of the indictment by the addition of "red" in the description of the calf, such amendment is expressly authorized by Section 2532, Code 1942. See also annotations thereunder.
(Hn 6) There was no error in the refusal of the court to grant the motion of the District Attorney for a nolle prosse. See Section 2566, Code 1942, which is in part as follows: "Prosecutions not compromised or nol prossed without consent of court, or dismissed, except at defendant's cost. — A district attorney shall not compromise any cause or enter a nolle prossequi, either before or after indictment found, without the consent of the court; . . ."
Reversed and remanded.
Roberds, P.J., and Hall, Holmes and Arrington, JJ., concur.