Grammer v. State , 239 Ala. 633 ( 1940 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Appellant was tried and convicted of murder in the first degree for killing one Hammett by cutting him with a knife, and given a life sentence in the penitentiary. His plea was not guilty and not guilty by reason of insanity.

There was no question reserved for our consideration under his plea of not guilty, but all questions relate to that of insanity.

The fight occurred August 3, 1937, and Hammett died September 3, 1937. On November 9, 1937, a hearing was had under section 4577, Code, as to the sanity of defendant then existing, the court having appointed a doctor to examine into his mental condition. Upon such hearing, the court ordered him to the State Insane Asylum. On July 2, 1938, the court made an order that, since the superintendent of the hospital had certified that he was not then insane, he be returned to the county jail for trial, and he was tried and convicted on January 9, 1939.

The evidence of insanity offered by defendant tended to show that his grandfather and grandmother were both insane, though none of their children had become so, and defendant is the only one of nine brothers and sisters to be so afflicted.

Defendant was a World War veteran, and was discharged honorably in 1919, and married in 1920, and had children. He was in various veterans' hospitals on account of his abnormal mental condition.

On October 22, 1933, he was adjudged insane in the Probate Court of Tuscaloosa County, and committed to the United States Veterans' Hospital. His record showed treatment at various facilities, and that about 1926, he was using alcohol excessively, and had a distinct change of personality, diagnosed as dementia praecox, simple type; and at another time it was diagnosed as a paranoid type. The report showed that afterwards in the hospital his only abnormality manifested was his inability to abstain from using liquor, and was criminally insane when under its influence.

He was in and out of the hospital on several occasions.

Dr. Edwards, a general practitioner of medicine, testified for defendant, that he was the family physician, but not a specialist on mental disorders. He diagnosed his condition prior to 1936, which was the last time he talked to him as "cyclic insanity." On some occasions he was practically normal; at other times he appeared nervous and was not normal, and at other times absolutely insane; that it was in the form of dementia praecox of which "cyclic" insanity was a type. His opinion was that defendant's condition was permanent, but "not always". When he is laboring under one of those spells of insanity, he might not be able to distinguish between right and wrong; that he is not at all times, at least, accountable for what he does, good or bad.

Dr. Littlejohn, a specialist on mental diseases, who examined defendant in November, 1937, at the instance of the court to determine his mental status at that time, examined him only one time in the county jail. He testified to various symptoms and his historic record. Upon the basis of a hypothetical question, he answered that defendant was probably insane August 3, 1937; that probably he had dementia praecox. It may be simple or paranoid, that is, without or with delusions. This is a permanent form of insanity with remissions. A patient under a remission probably would be able to determine right from wrong, probably not if he was in a spell, and not in a remission. That he would not express an opinion as to whether he was insane at the time of the killing; that it takes a long period of observation to diagnose dementia praecox.

Dr. Kay testified for the State. He is a specialist in mental diseases, and is a staff physician at the Bryce Hospital. Defendant was under his observation November 13, 1937, to July 2, 1938, when he was discharged. He was brought before the entire medical staff on several occasions for clinical conference; that it was the unanimous opinion of the entire staff in all the conferences that he was not insane, based on a review of the history of his case, his behavior in the hospital, and examinations and observations of him. Whereupon Dr. Partlow, the superintendent, directed his return for trial under this charge.

There were seven physicians and the clinical director on the staff. They thought he was not insane, but dangerous to society after a long period of anti-social and dangerous behavior; that he knows right from wrong, but does not always take into consideration the price he has to pay for his conduct; and when drinking he was a menace to society. That he did not have dementia praecox. A person with such affliction would have a different picture of symptoms, which Dr. Kay epitomized. But that there is a tendency when he is so afflicted to improve some, and be better at times — but it is present all the time when it exists. There are variations to the intensity with which the symptoms are evidenced; that a severe case would render one incompetent to control his acts.

Appellant assigns errors. The first argued in brief are 2, 3 and 4, which are discussed together. They are refused charges, as follows:

"18. The court charges the jury that if you are reasonably satisfied from the evidence that prior to the time of the difficulty between defendant and deceased, the defendant was afflicted with a mental disease, and that the mental disease was of a permanent type, then the mental disease is presumed to continue and the burden rests on the State to prove to your reasonable satisfaction that the defendant was not suffering from the mental disease at the time the defendant had the difficulty with deceased."

"19. The court charges the jury that if you are reasonably satisfied from the evidence that the defendant, prior to the time of the difficulty between defendant and deceased, was insane, and that his insanity was of a permanent type, then there is a presumption that the insanity continued."

"23. The court charges the jury that if you are reasonably satisfied from the evidence that prior to the time of the difficulty between defendant and deceased, that defendant had been judicially declared insane by the Probate Court of Tuscaloosa County, Alabama, and if you are further reasonably satisfied from the evidence that the insanity he was declared to be afflicted with was of a permanent type, then it is presumed that the insanity continued, and the burden rests on the State to prove to your reasonable satisfaction that the crime charged against defendant, was committed at a time when the defendant was not laboring under the duress of the disease."

Charges 18 and 23 misplace the burden of proof in respect to the plea of not guilty by reason of insanity. Such a defense must be "clearly proved to the reasonable satisfaction of the jury." Section 4572, Code. This puts the burden on the defendant, not to make out a prima facie case of insanity, nor to raise a reasonable doubt as to it, and to carry that burden throughout the trial, not discharged until the jury is reasonably satisfied of defendant's insanity. The burden in this respect never shifts to the State nor rests on the State. Parrish v. State, 139 Ala. 16(24), page 50, 36 So. 1012; Anderson v. State, 209 Ala. 36(9), 95 So. 171; Boyle v. State,229 Ala. 212, 154 So. 575.

Charge 19 is the statement of what is supposed to be a scientific fact of more or less value in such a trial as this.

But it gives no direction to the jury as to the effect of such a presumption from such a finding as here applied. And has a misleading tendency whereby the jury might conclude that such a presumption required a finding of not guilty. But the evidence is that though he might have had a permanent form of insanity, it was such as that at times he was legally responsible for his misconduct. At times, he may not have been. Under the statute the burden was on defendant to show that at the time of doing the act, he was incompetent to control himself, though he may have had a permanent form of insanity, if in such condition there were times when he was competent to know right from wrong, and control his actions.

When there is proof of such intervals of lucidity, the principle that a permanent form is presumed to continue (Odom v. State, 174 Ala. 4, 56 So. 913) does not mean that there is a presumption against the idea that he may have acted in a lucid interval. Talbert v. State, 140 Ala. 96, 37 So. 78.

Moreover, the jury might suppose from this charge that any form of permanent insanity existing at the time of the offense prevented a finding of guilty whether or not the crime was the effect of the insanity. The unsoundness of mind may have had no influence upon the act of defendant on that occasion. To be in position of irresponsibility for the commission of an alleged crime by reason of insanity, the act of defendant, alleged to be a crime, must have been the product solely of the deranged mental condition. Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am.Rep. 193.

There may be other reasons why the charge was refused without error, not necessary here to consider.

Assignments 5 and 6. The court is here requested to charge the jury that dementia praecox is a permanent type of insanity.

But we observe that this is not a matter of such general scientific knowledge that the court will take judicial notice of it. Assuming that there is no tendency of the evidence to the contrary, the fact is dependent upon oral testimony expressing the opinion of witnesses. When so, the court will not ordinarily be held to be in error in thus stating the proven fact, neither will he be held to be in error for refusing to do so. Carter v. Chambers,79 Ala. 223. See, Commonwealth Life Ins. Co. v. Harmon,228 Ala. 377, 153 So. 755.

Moreover, the extent to which dementia praecox may be permanent is not made perfectly clear in the testimony of the witnesses. While there is shown to be a certain amount of permanency in the disease, the doctors all, using different words to express it, agree that there are "remissions" in it, or, as one says, it is "cyclic"; another that "mentally they will gain, and mentally get well, we will say," but "it is present all the time," and "considered as recurrent."

We think that it would have a misleading tendency to charge that it is permanent.

Assignments 11 and 12. On cross-examination of defendant's wife in respect to the sanity of defendant, the court allowed her to say that he had been sentenced to the penitentiary at Montgomery for assault with a weapon "9th and 5th of 1933." The court stated that it was admitted only on the question of defendant's sanity.

This issue gives much latitude to the defendant and the State to introduce evidence of defendant's acts, declarations and conduct prior and subsequent to the alleged crime. Anderson v. State, 209 Ala. 36, 95 So. 171; Birchfield v. State, 217 Ala. 225,115 So. 297; Deloney v. State, 225 Ala. 65, 142 So. 432.

There was no error in the ruling.

Assignment 14. We fail to find in the bill of exceptions an exception to the oral charge as set out in this assignment.

Assignments 15 and 16. It is the settled law that the general bad character of an adversary witness may be shown to impeach him, and it is not limited to character for truth and veracity. 19 Ala.Dig. 799, Witnesses, 337(2).

We have carefully examined the recitals of the bill of exceptions in this connection, and have reached the conclusion that they do not show prejudicial error.

Assignments 7, 8, 9 and 10. They show that appellant offered to prove that a State's witness had been convicted fourteen times in the recorder's court for drunkenness and disorderly conduct. This was offered for impeachment purposes.

This contention finds no support in section 7722, Code, since the conviction involves no moral turpitude. Marshall v. State,207 Ala. 566, 93 So. 471; Baugh v. State, 215 Ala. 619,112 So. 157; 19 Ala.Dig. 809, Witnesses, 345(2).

Moreover, the statute which permits the impeachment of a witness by proof of a conviction for a crime involving turpitude only applies to violations of State laws, not for violations of municipal ordinances. 19 Ala.Dig. 808, Witnesses, 345.

Appellant relies on the case of Lowman v. State, 161 Ala. 47,50 So. 43, 44, where a witness had testified to the good character for truth and veracity of defendant, and it was held that the State on cross-examination could question the witness whether he had heard that defendant had been accused of selling liquor. This Court observed that under such circumstances, the witness could be questioned as to what he had heard likely to affect the character of the witness sought to be impeached, and stated further that "Repeated violations of statute law will doubtless affect general character, which, when made the subject of proof in courts of justice, means the estimate in which one is held by the community," though they may not involve moral turpitude.

But that principle does not open the door to proof of such violations as direct evidence of bad character, and it is not so stated in that case.

We find no reversible error, and the judgment is affirmed.

Affirmed.

ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.

On Rehearing.