Summary
In Williams v. State, 205 Miss. 515, 524–25, 39 So.2d 3, 4 (1949), this Court held that the trial of a mentally incompetent defendant is a due process violation, adjuring that "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."
Summary of this case from Evans v. StateOpinion
February 28, 1949.
1. Judgment — insanity — trial.
A verdict and judgment rendered when the defendant was first put on trial that he was at that time insane, is not res adjudicata upon issue raised at a subsequent trial and after he had been discharged from the mental hospital, that he was insane at the time of the commission of the offense.
2. Insanity — trial — preliminary investigation.
The trial of a defendant when his mind is so beclouded that he cannot remember and intelligently relate what occurred at the time of the commission of the 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 that he is sufficiently rational to make defense.
3. Insanity — trial — observations of trial judge.
Although ordinarily a preliminary hearing must be had when the issue of insanity has been properly raised, yet when the trial judge is of the well-founded opinion from his adequate observations of the defendant in the courtroom that there is no probability that the defendant is incapable of making a rational defense, he may decline a preliminary hearing and submit the issue of sanity to the jury on the trial in chief and if the instructions have been correct and the verdict of the jury is against the suggestion or suggestions of insanity, there will be no reversal merely for the refusal to hold a formal preliminary hearing.
4. Criminal procedure — waiver of arraignment.
A defendant in a felony case may waive arraignment, either expressly or impliedly and when feigning insanity he stands mute, without right or justification, he impliedly waives his right to arraignment and the court under Sec. 2504, Code 1942, may properly enter for him a plea of not guilty.
5. Criminal law — robbery with deadly weapon — instructions.
In prosecution under Sec. 2011, Code 1942, for robbery with a deadly weapon, an instruction to the effect that it is sufficient if the weapon used is "some instrument capable of producing death or great bodily harm" is erroneous in that under the statute the weapon used must be one "likely to produce death".
6. Criminal procedure — insanity — presumption of sanity in absence of any evidence to contrary.
The presumption of sanity will be sufficient to sustain the burden of proof resting on the State of defendant's sanity at the time of the commission of the offense charged, when nothing appears to the contrary, but when out of the evidence there is sufficient to raise a reasonable doubt of defendant's sanity at the time, the State must then show, as an essential element in the accountability of the defendant, the sanity of the defendant at said time, and the State must show it beyond a reasonable doubt; and an instruction which would shift the burden of proof on this issue to the defendant is erroneous.
Headnotes as approved by Montgomery, J.
APPEAL from the circuit court of Covington County; HOMER CURRIE, J.
G.H. Merrell, and W.U. Corley, for appellant.
No arraignment of the defendant was ever had; the indictment was never read to him, and when the court's attention was called to it, the court itself had a plea of Not Guilty entered.
The court was required to take up the motion and submit the issue of insanity to that jury before the issue of facts could be gone into.
The court over-stepped its rights when it empaneled a jury to try three issues at one and the same time; it denied the defendant the rights guaranteed to him by Section 26 of the State constitution, to be heard by himself and counsel, to demand the nature and cause of the accusation, and shall not be compelled to testify against himself.
In a felony charge, arraignment cannot be waived; the attorney cannot plead for him, and he cannot be arraigned if insane. "In a felony case, the defendant cannot waive arraignment, nor can he plead by attorney." Wilson v. State, 42 Miss. 639. "A man insane at the time of arraignment should not be arraigned." 121 Miss. 197, 83 So. 158. "A plea in a felonly case must be in proper person, and if the record shows it was put in by attorney, it will be a nullity." Wilson v. State, supra; Cachute v. State, 50 Miss. 165. "It will be error to try a prisoner until he has first pleaded to the indictment". 24 Miss. 602.
It will be noted from the record, that the state had accepted the jury and tendered same to the defendant, for challenge, or acceptance; that the accepted jury had been qualified to try three issues. First, that of Guilt. Second, Sane or Insane at time of alleged crime. Third, Sane or Insane now. The court's attention was called to the fact, that only two issues were before the jury at that time, — that of insanity then and insanity now, — that he had never been arraigned, and without arraigning defendant there was no issue of fact; that the court then of its own motion entered a plea of not guilty and proceeded with the trial and the defendant has never been arraigned. It was the purpose of counsel for the defendant to enter an objection to arraignment until his sanity was established, but we were denied that right.
We have only one case, that we have been able to find in Mississippi, where this court did not hold that the motion for a hearing on the sanity question should be submitted to a jury before the issue of fact, and in that case, just the motion was filed and no affidavit or proof offered in support of the motion.
In the case of Hoye v. State, 169 Miss. 111, 152 So. 167, we have a habeas corpus trial, in which Hawie v. State, 126 Miss. 589, 88 So. 167, was reviewed, and in which it is stated, that this should be done every time the case is called for trial, the test being, can the defendant make a defense, and he certainly could not in this case.
Further it said "The test of a defendant's sanity is an inquiry to determine whether he shall be put on trial in a criminal case, is can he make a rational defense".
This court in Carter v. State, 21 So.2d 404, went further and held, that this plea of insanity, should have attention. Two attorneys appointed to defend the man, made no such plea; the case went to trial and he was convicted. Another attorney brought the case to this court and the only ground, or assignment was that the party was insane; that it was the duty of the court to have sustained the motion, but held that it was required by the State's public policy, as expressed in the constitution, Sec. 14. It held that that trial should not have been proceeded with, or any trial proceeded with until the question of insanity is settled, and the only way to settle it, is by a jury of 12 men.
1st. We have a man charged with a felony of having an intent to steal $73.00 from a named individual, with no evidence to indicate, that the defendant, even if a sane man, had any knowledge that the injured party had $73.00 or any other sum. If he was ignorant on this part, he could have no intent to do a thing he knew nothing about.
2nd. We have a man charged with assault, etc., with a deadly weapon, with no evidence offered by the State or the defendant that any weapon was used by the defendant, or had by the defendant, until after the man was injured, when defendant secured a shot gun, followed by a rifle, and an order for another shot gun.
3rd. We have a man charged with making the assault with a deadly weapon only and not other means likely to produce death, yet the court tells the jury in an instruction that if they believe from the evidence that he used a weapon likely to produce "great bodily harm", they must convict him.
4th. We have a man charged with assault, with intent to steal $73.00, with no evidence that he stole anything, or tried to.
The attorney for the defendant at the January, 1948 term of court, and at July term of court, up to day of trial, filed as aforestated, a plea of res judicata, having reference to the motion, and trial thereon at January term on question of insanity.
This motion was again filed at the July term, with an affidavit setting forth the insanity of the accused; also backed by the verdict of the jury at last term of court and the judgment of the court based on that verdict, not withstanding all this he, the court, ordered defendant to trial on three issues with one jury, and in addition to this error, and the error already mentioned as to being assaulted with a weapon capable of, or likely to produce great bodily harm, instead of death as prescribed by statute, but with the further error, of laying the defense of insanity at the feet of the defendant, or in the lap of the defendant when that is not now, or has ever been, the law in Mississippi. In every case where insanity is plead as a defense, or put in issue, by facts proved by either side engendering a reasonable doubt, it devolves upon the state to remove that doubt, and beyond every reasonable doubt, and to show sanity beyond every reasonable doubt arising out of the evidence. Cunningham v. State, 56 Miss. 269. Again where the general or habitual insanity of the accused is shown, the state has the burden of showing that the crime was committed during a lucid interval. Ford v. State, 73 Miss. 734. A person charged with a crime and defending on the ground of insanity is not required to establish his insanity, but to raise a reasonable doubt by the testimony as to his sanity at the time of the commission of the alleged commission of the crime. Gaffey v. State, 24 So. 315.
George H. Ethridge, Assistant Attorney General, for appellee.
The state introduced evidence to the effect that the appellant was sane. This testimony was delivered by experts on the question of sanity at the state insane hospital at Whitfield showing clearly, in my opinion, that the defendant was sane at the time of his commitment to the hospital and at the time of his discharge from said hospital and from conversations on the day of the trial between one of the hospital physichiatrists who expressed the opinion that the defendant was sane and had never been insane but that his troubles were due to the effect that he drank intoxicating liquors. I do not think that the testimony for the defendant is legally competent to establish insanity either at the time of his last trial or at the time of the commission of the offense. Further, it is so unreliable and unbelievable that a jury selected in accordance with law and measuring up to the legal requirements for jury service found him sane. It seems that in this case on the question of sanity of the defendant the court permitted evidence to the effect that at the time of the commission of the crime and at the time of the trial appellant was sane and by instructions instructing the jury as to both questions and submitting these questions to the jury. The jury, by its verdict, responded to the testimony on both issues finding in their verdict that the appellant was sane both at the time he committed the offense and at the time of the last trial. While this appears to be irregular it is certainly harmless when considered all together. The finding of the jury on both issues is amply supported by competent, strong and convincing testimony.
The state got an instruction on page 326 that one of the issues for the jury to decide was whether the defendant was at that time sane or insane and then proceeds to state the test of insanty as contained in the said instructions and concludes with this language — "The court instructs the jury further, that if from the evidence you should believe beyond a reasonable doubt that the defendant is not a sane man, you should not return a verdict of not guilty because of this issue." On page 327 the state secured an instruction which told the jury the burden of proof rested on the defendant on that issue as to his sanity at the time of the commission of the crime. In other words, the two instructions were to be transposed, it being the duty of the defendant if the defendant was insane at the time of the trial to introduce proof to sustain that contention but the burden would be on the state, where it was suggested by evidence, that the proof must show beyond all doubt the sanity at the time of the trial. The burden is on the state on the merits to show sanity where that issue is put in evidence by either party. However, the state got its first instruction appearing at page 325 which seems to be a correct announcement of law.
On page 338 the defendant got an instruction that while the law presumes every man to be sane and responsible for his acts until it is proven to the contrary, still, if there is evidence tending to rebutt that presumption sufficient to raise a reasonable doubt upon the issue of insanity then the burden is upon the state to show by evidence beyond a reasonable doubt that the defendant was sane at the time the alleged offense was committed. That this is true regardless of the cause of such insanity. I submit that this instruction modifies the third instruction secured by the state as all of the instructions must be considered together as though they were one instruction, one instruction modifying another instruction or supplementing as the case may be.
Counsel in their brief try to establish that the defendant cannot waive arraignment nor can arraignment be waived by his attorney, citing early cases to establish that proposition. Our court has recently held that arraignment may be waived and that proceeding with a trial without objection is a waiver of arraignment. See Scruggs v. State, 130 Miss. 49, 93 So. 82; Fifth Mississippi Digest, "Criminal Law" Key No. 262; Bufkin v. State, 134 Miss. 1, 98 So. 452, as well as Section 2504, Code of 1942.
While this case was proceeded with in an irregular and improper manner in submitting to the jury both issues, to-wit: insanity or sanity at the time of the commission of the crime and insanity or sanity at the time of the trial I submit that it is harmless error and that as the court instructed the jury as to their verdict on both issues and the jury responded to both issues in their verdict and this verdict and finding is fully supported in the evidence that this court should not reverse for this error. I submit, however, that the two are inconsistent and if insanity was to be inquired into at the time of the trial that should have preceded the trial on its merits. If a person is not sane at the time of his trial and unable to confer with counsel as to his defense it would be wholly improper to inquire into the merits of his defense until the issue of sanity at the time of the trial was disposed of. How could a man who was incompetent show understanding by his defense and conferring with counsel in reference thereto be legally tried on the merits of the case? As stated, there is so little proof to sustain insanity at the time of the last trial that the court could well hold that there was insufficient proof to require its submission to the jury. As the issue has been submitted and the finding of the jury made thereon, approved by the trial judge, then that certainly would justify the affirming of the case notwithstanding the irregularity and impropriety in mere procedure which is shown in this case. I therefore submit that the judgment should be affirmed in this case, but I would suggest and request that the court in its opinion clear up the procedure for the benefit of other cases which may hereafter follow.
John Williams was indicted upon a charge of felonious assault upon one B.H. Mixon with a deadly weapon, with intent to steal $73 under the provisions of Section 2011, Code of 1942. Before arraignment or plea the attorney for the accused filed a motion, backed by affidavit, that the accused was insane. An issue was then made up, proof was taken, and the jury returned a verdict that the accused was then insane, was dangerous to be at large, and recommended permanent confinement in the State Insane Hospital. Judgment to this effect was entered by the court. The accused was carried to the State Insane Hospital, where he was detained for thirty days and was then discharged and returned to his home in Covington County.
On the convening of the July term of court thereafter, the case was again called by the court. (Hn 1) A plea of res adjudicata was then filed by his attorney to the effect that the former jury had adjudged the accused to be insane at the time of the commission of the offense, but such was not the verdict of the jury, and the plea was properly overruled by the court.
Thereupon a second motion, supported by affidavit, suggesting accused's insanity, was filed and this motion was by the court overruled, the court dictating into the record that he had observed the accused in the courtroom and there was "no good reason, legal or otherwise, for a preliminary hearing to be had as sanity or insanity of this man before the trial of this case on all issues." Counsel then called the court's attention to the fact that accused had never been arraiged and had never plead to the indictment, and by reason of his insanity was unable to plead. The court then ruled: "If the defendant desires at this time to be arraigned, or counsel for him desires to tender him for arraignment, the court will permit him to be arraigned. What do you say gentlemen?" Counsel replied: "We stand mute, your honor." The Court then ruled: "The defendant standing mute, and counsel declining to allow him to plead, the court here and now enters a plea of `not guilty' for the defendant, which joins issue on the merits of the case." The court thereupon put the accused to trial before the jury on three issues: 1. Sanity at the time of the commission of the offense. 2. Sanity at the time of the trial. And 3. Guilt or innocence of the offense charged. After taking testimony, and the granting of instructions, the matter was submitted to the jury, and, after consideration, they returned a verdict finding the defendant guilty as charged, and that he was sane at the time of the commission of the offense and sane at the time of the trial.
Appellant assigns as error the action of the trial court in refusing preliminarily to submit to the jury the issues of insanity at the time of the trial and at the time of the commission of the offense. Section 26 of the Constitution of 1890 provides that in criminal prosecutions the accused shall have the rights to be heard by himself or counsel or both. (Hn 2) 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. (Hn 3) In the case at bar, however, we have heretofore set out in this opinion the observations of the trial judge of the defendant in the courtroom and his conviction that there was no probability that the defendant was incapable of making a rational defense. In addition, the jury found on the testimony in the case that the accused was sane at the time of the trial. We do not feel that the action of the trial court, in submitting to the jury the issue of sanity at the time of trial, the issue of sanity at the time of the commission of the offense, and the issue of guilty or innocent, all at the same time, was prejudicial error, if error at all, since the jury in this case under proper instructions from the court found the defendant to be sane at the time of the trial and fully capable of making a rational defense. Davis v. State, 151 Miss. 883, 119 So. 805. The principle of the law is for the protection of the insane person whose mind is so clouded that he cannot remember or intelligently relate to his counsel or to the court and jury what occurred at the time of the occurrence of the alleged offense. It contains no element of a refuge to which the sane may flee and obtain immunity from just punishment for their criminal acts.
Appellant further contends that the court erred in placing the accused on trial without arraignment and by entering a plea of not guilty in his behalf. This, of course, grows partly out of his defense of insanity. What we have said in the next preceding paragraph in regard to the rights of an insane person applies here with equal force, and is a disposition of that element entering into the alleged error in the action of the court and eliminates it from consideration here. It is true that in Wilson v. State, 42 Miss. 639, it was held that under an indictment for a felony the accused cannot waive arraignment nor can he plead by attorney, and that again in Cachute v. State, 50 Miss. 165, it was held that in all cases of felony the record must show affirmatively that the accused was arraigned and plead in person to the indictment; but the rule announced in these old cases was discarded in Scruggs v. State, 130 Miss. 49, 93 So. 482, for (Hn 4) the more modern and better rule, followed by the courts of this country, that the defendant may waive arraignment either expressly or impliedly. Bufkin v. State, 134 Miss. 1, 98 So. 452; Scruggs v. State, 130 Miss. 49, 93 So. 482. Here this defendant, by unjustly feigning insanity at the time of the trial, as the jury found, standing mute without right or justification, toying with the right the law gave him to an arraignment, impliedly waived his right to an arraignment. The court, very properly, under Section 2504, Code 1942, entered the plea of "not guilty."
The appellant assigns as error the granting of two instructions to the State. The first instruction complained of reads as follows:
"The Court instructs the jury for the state that if you believe from the evidence beyond a reasonable doubt, and to the exclusion of every other reasonable hypothesis consistent with the innocence of the defendant, that the defendant wilfully, unlawfully, feloniously and of his malice aforethought, did strike, hit and wound the witness B.H. Mixon, with some instrument capable of producing death or great bodily harm, with the felonious intent to take, steal, and carry away the personal property, to-wit, $73.00, of B.H. Mixon; and if you further believe beyond a reasonable doubt that the defendant is now capable of making a sane defense to his case; and there is no reasonable doubt arising from the evidence of the sanity of the defendant at the time of the alleged crime; then it is the duty of the jury to return a verdict of guilty as charged."
(Hn 5) It will be noted that this instruction requires the jury to find that the assault was made only "with some instrument capable of producing death or great bodily harm." If the jury should believe that the instrument was not a deadly weapon yet was capable of producing great bodily harm, they could convict. This is not the law. Section 2011, Code 1942, under which this indictment was returned, requires that the assault be made "with any deadly weapons or other means or force likely to produce death." A weapon capable of producing great bodily harm does not satisfy the requirement of the statute, and it was prejudicial error for the court to grant the instruction in that form.
Again, it is assigned as error the giving of the instruction to the State, reading as follows:
"The Court instructs the jury for the State, that one of the issues for the jury to decide in this case and upon which the burden of proving rests on the defendant, is the sanity of the defendant at the time the alleged crime occurred. That the test of whether a man is sane or insane at the time of the alleged crime was committed was whether he knew and was able to distinguish right from wrong. The court charges you further that unless there be in your mind a reasonable doubt arising from the evidence as to the sanity of the defendant at the time the alleged crime was committed, based on above rule of law and evidence, then you should not return a verdict of not guilty because of this issue."
(Hn 6) It will be noted that this instruction places on the defendant the burden of proving his insanity at the time of the commission of the offense. The burden never shifts in a criminal case. It is true that every man is presumed to be sane. It is also true that this presumption of sanity will be sufficient to sustain the burden resting on the state of proof of sanity on the part of defendant at the time of the commission of the act charged, if defendant offers no testimony to meet the presumption sufficient to raise, out of the evidence in the case a reasonable doubt of the defendant's sanity at the time he committed the act. But it is none the less true that the state carries the burden of showing, as an essential element in the accountability of defendant, the sanity of the defendant at the time, and of showing it beyond all reasonable doubt, as distinctly announced in Cunningham v. State, 56 Miss. 269, 276, 21 Am. Rep. 360, and Ford v. State, 73 Miss. 734, 19 So. 665, 35 L.R.A. 117. The granting of this instruction was prejudicial error.
We find it unnecessary to comment upon any other assignment of error herein, but for the reasons hereinbefore stated the judgment of the lower court will be reversed and remanded.
Reversed and remanded.