Orange v. State , 77 Ga. App. 36 ( 1948 )

1. The evidence sustains the verdict on the general grounds.

2. Special grounds 1 and 2: The failure to charge in the instant case under its facts and under the whole charge, that the presumption of insanity based on an adjudication of insanity prior to the commission of the crime, does not show grounds for reversal.

3, 4. The assignments of error in special grounds 3 and 4 show no cause for reversal.

DECIDED MAY 6, 1948. Ted Orange was indicted with George Powell Jr., and Rita Mae Gazaway, at the August term, 1947, of the Superior Court of Troup County, for robbery, in that the said Ted Orange, on June 9, 1947, fraudulently and by force and intimidation, together with George Powell Jr., and Rita Mae Gazaway, took from the person of J. N. Freeney, without his consent, and with the intent to steal the same, twenty-two dollars in paper money of the United States, one Derby men's wrist watch, metal wristband, of the value of fifty dollars, and one 1942 2-door Fleetline Chevrolet of the value of twelve hundred fifty dollars, all the property of the said J. N. Freeney.

To this indictment the defendant entered his plea of not guilty, and was placed on trial at the August term, 1947. He was tried separately and we are here concerned with his case only. A verdict of guilty of robbery by intimidation was returned by the jury, and the defendant, in accordance with the recommendation of the jury, was sentenced to the penitentiary for a term of not less than two years and not more than five years.

The defendant filed his motion for a new trial upon the general grounds and later amended his motion by adding four special grounds. To the judgment overruling this motion he excepted.

J. N. Freeney, the victim, lived in Ashland, Alabama, and was in LaGrange, Georgia, on June 9, 1947, on a business trip. Freeney, on the evening of June 9, met a man at Grubb's restaurant, said man being identified only as the "watermelon man." The watermelon man introduced Freeney to Ted Orange and George Powell Jr., stating that they were friends of his, and he asked Freeney to take Ted Orange and George Powell Jr., and himself to town, which Freeney refused to do, as the watermelon man had a car of his own. The watermelon man asked Freeney to take all of them down to Ocie Smith's place; they wanted to stop and pick up a girl. Freeney consented, and they rode by some houses, stopped at one, and came back with a bottle of moonshine; they drove by and picked up the girl, and drove on down to Smith's place. George Powell Jr. told Freeney where to drive. The watermelon man got out and the girl got out. The watermelon man went in Smith's restaurant. George Powell Jr, told the girl to get back in the car, as they were going. Powell at that time had his left arm around Freeney with some kind of sharp instrument in his hand. Freeney suggested that they get out and have a beer, but was told by Powell to stay in the car. Powell told Orange and the girl to get in the car and told Freeney to start driving. They drove out to the river and took a road off to the right, first driving up in some person's yard which they all admitted was the wrong place, except Freeney, who was unfamiliar with the territory. They left and started down the road, and Powell told Freeney to stop the car. The defendant and the girl stayed in the car; Powell got out of the car. Freeney started to get out of the car, and Powell told him to keep his hand up, stating, "I would just as soon cut your God damned throat as to take a drink of water. Keep your hands up. I will kill you in a minute. Where is your pocketbook?" Freeney started to reach for his pocketbook and Powell said: "Keep your God damned hands up. I will kill you in a minute." Powell reached in Freeney's pocket and pulled out the pocketbook, getting the money and the pocketbook. He pulled off Freeney's wrist watch, and made Freeney pull off his shoes, and stated to him: "You are a decent sort of a s.o.b. or I would kill you." The defendant did not say anything at the time. Freeney was ordered to get going. Freeney ran out in the woods 24 or 30 yards from where they had stopped. Powell and the defendant and the girl were talking, but Freeney could not understand what they were saying. When Freeney was told to run, he ran up in the woods and hid under a tree, and waited some time until Powell, the defendant Orange, and the girl left. When they left, he went back to the dirt road and headed in the opposite direction up the highway, later changing his direction and going back the way he came. Freeney went to a house and asked if they had any means of communication, and was told by the owner that he had none, but to stay off the highway. Freeney went to Mr. Moore's and asked to use the telephone and called up the State troopers, who came out immediately and were informed by Freeney of what had taken place.

The defendant, together with Powell, was seen in the automobile on the night of June 9. They were seen again the next day about five o'clock walking. The defendant told Bill Watson, witness for the State, that he had a car with a tire blown out, and that he had to get another tire. On the night of June 9 or 10, the defendant was seen by E. J. Harper, witness for the State, in Atlanta, Georgia, together with Powell and Rita Mae Gazaway. The defendant, together with Powell, tried to sell a 1942 Chevrolet, the one belonging to Freeney, to E. J. Harper, the witness. Harper was asked $500 for the automobile to begin with, but was later told he could have it for $200. He was also told that the car was a "hot car." The defendant was seen in Atlanta, Georgia, on the morning of June 10, about 6 or 7 o'clock. He was with a man and a woman. He was seen in the place of Arthur Guthus, a witness for the State, where they drank one bottle of beer and bought two quarts of wine. The watch and $2 were swapped for the two quarts of wine and the beer. The defendant was seen on the morning of June 9 or 10, about 10 o'clock, in Atlanta, by A. S. Shune, a witness for the State. Shune, a mechanic, put a fuel pump on the 1942 Chevrolet, took out a radio for the work, and gave $2.50 to either Powell or the defendant. (On cross-examination, the witness testified that Powell came in and paid him for the job.)

Three witnesses, G. G. Keeble, R. B. Carter, and C. V. Hillyer, testifying for the State, testified that they knew the defendant and had known him for several years, and during the past had had an opportunity to observe his mental condition; that, in their opinion, he knew the difference between right and wrong, and that he was sane. All the witnesses testified that they talked to him, or had seen him, before and after February 14, 1947.

The defendant made no statement to the jury, but introduced in evidence a certified copy of an order of the Court of Ordinary of Troup County, dated August 5, 1947, showing that he was adjudged insane on February 14, 1947. The record does not reveal clearly just when or why the defendant Orange left Milledgeville, but it was sometime prior to the alleged offense. 1. So far as the general grounds are concerned, the evidence which we have set out at length is clearly sufficient to sustain the verdict of conviction. Indeed, the attorney for the appellant does not argue to the contrary. It therefore follows that unless there is some meritorious contention in one or more of the special grounds, the judgment should be affirmed. We will look into them in their order.

2. Special ground 1 assigns error because the court refused to give the following request to charge: "I charge you that where there is evidence showing insanity prior to the commission of the crime, the presumption is that the accused continued to be insane. I further charge you that the law of no civilized country holds idiots or lunatics or insane persons liable for their acts, either civil or criminal. I further charge you that if at the time the act was committed, the defendant was incapable of adjudging the quality of this act and knowing whether it was right or wrong, you should acquit him." It was held in the case of Quattlebaum v. State, 119 Ga. 433 (6) (46 S.E. 677): "One adjudged insane is responsible for a crime committed during a lucid interval. Penal Code, § 35." See also Code, § 26-303. In our opinion, to have charged in the language requested would have placed the burden upon the State to establish the sanity of the defendant at the time of the commission of the crime, where, as here, prior thereto he had been adjudged insane by a court of ordinary. In a more recent case, Hubbard v. State, 197 Ga. 77 (2) (28 S.E.2d 115), the Supreme Court held: "Although the defense of insanity at the time of an alleged crime may be made under a general plea of not guilty (Carr v. State, 96 Ga. 284,286, 22 S.E. 570), the burden rests on the accused, under the presumption of sanity, ``to show by a preponderance of evidence, but not beyond a reasonable doubt, that at such time he was mentally irresponsible, under the tests recognized in this State.' Rozier v. State, 185 Ga. 317, 319 (195 S.E. 172), and cit.; Danforth v. State, 75 Ga. 614 (3), (58 Am. R. 480); Griffin v. State, 195 Ga. 368 (24 S.E.2d 399);Bowden v. State, 151 Ga. 336 (3), 339 (106 S.E. 575);Hinson v. State, 152 Ga. 243 (2) (109 S.E. 661)." It is true that where one has been adjudged insane the presumption is that such insanity continues until some adjudication to the contrary, but where, as here, the charge of the court fully covers the question, the failure to charge in the language requested is no ground for reversal. The court fully charged, and correctly, the law of insanity. It is true that counsel for the defendant challenges the charge of the court on the ground that the court was confused in its charge as to a special plea of insanity and a plea of insanity under the general issue, the former being provided for under the Code, § 27-1502, and the latter under § 26-301. It is well settled that a special plea is proper if the defendant has become insane since the crime was committed or is insane at the time of the trial, and that a plea of insanity may be taken advantage of under the general issue if the defendant was insane prior to the time the alleged crime was committed or was insane at the time the crime was alleged to have been committed. In the instant case no special plea of insanity was filed. The defendant sought as a defense to take advantage of a plea of insanity under the general issue, on the ground of an adjudication of insanity prior to the commission of the crime, or that the defendant was insane at the time the crime was alleged to have been committed. The evidence reveals that the defendant had been adjudged insane prior to the time of the commission of the alleged crime. That seems to have been conclusive. But as to whether he was insane at the time of the commission of the crime was a jury question. The State produced evidence overwhelmingly to the effect both by the conduct of the defendant and by his participation in the crime and by witnesses who knew him and had observed him since his adjudication that at the time of the commission of the crime he was sane and knew the difference between right and wrong. We are not unmindful of the principle of law that where one has been adjudged insane the presumption of such insanity continues unless this presumption is in some legal manner removed. In some cases the failure to charge as to this presumption would be reversible error, but under the facts of this case and the charge of the court as a whole, it is our opinion that the failure to charge on such presumption is not cause for reversal in the instant case and we so hold.

3. Special ground 2: Error is assigned on the following excerpt from the charge of the court "the burden of proof is on the defendant to establish his plea of insanity by a preponderance of evidence." The assignments of error on this charge are in effect practically the same as those dealt with in the next preceding division of this opinion. As we have stated, the defendant filed no special plea but he did endeavor to take advantage of a plea of insanity under the general issue. This was based on an adjudication of insanity prior to the commission of the alleged crime. The authorities and reasoning given in the said preceding division of this opinion are applicable here. We can make our position no plainer by further elaboration.

4. Special grounds 3 and 4 we will treat together. Special ground 3 complains of the following excerpt from the charge of the court: "A lunatic or person insane, without lucid intervals shall not be found guilty of any crime or misdemeanor with which he may be charged; provided the act so charged as criminal was committed in the condition of such lunacy or insanity. But if a lunatic has lucid intervals of understanding, he shall answer for what he does in those intervals as if he had no deficiency." In special ground 4 complaint is made of the following excerpt from the charge of the court: "The perpetrator may be insane in a loose, general sense, and yet be, in the eye of the law, sane and responsible so far as the act in question is concerned." It is contended that the above excerpt from the charge of the court was "commingled with the following charge and language of the court: ``Generally with regard to the question of sanity or insanity at the time of the alleged act, or an act alleged to be criminal, the true test of the sanity or insanity is as follows: The insanity which renders the perpetrator of a particular act which would ordinarily be criminal, incapable of committing a crime, is such as deprives him of the capacity to distinguish between right and wrong as to such act. The perpetrator may be insane in a loose, general sense, and yet be, in the eye of the law, sane and responsible so far as the act in question is concerned.'" With reference to these excerpts we might here quote more fully from the charge of the court on insanity as follows: "Generally with regard to the question of sanity or insanity at the time of the alleged act, or an act alleged to be criminal, the true test of sanity or insanity is as follows: The insanity which renders the perpetrator of a particular act which would ordinarily be criminal, incapable of committing a crime, is such as deprives him of the capacity to distinguish between right and wrong as to such act. The perpetrator may be insane in a loose, general sense, and yet be, in the eye of the law, sane and responsible, so far as the act in question is concerned. This is a question of fact to be determined by you, gentlemen of the jury.

"If you believe that the defendant committed the act charged against him in this bill of indictment, either by himself, or in conjunction with any of the others but at the time of its commission he was mentally incapable of distinguishing between right and wrong, relative to such act, then you should acquit him. Likewise, if you have a reasonable doubt as to this, you should give the defendant the benefit of the doubt and acquit him. The burden of proof is on the defendant to establish his plea of insanity by a preponderance of the evidence.

"If, on the other hand, you should believe the defendant committed the act charged against him in the indictment, either by himself or in conjunction with others named in the indictment, and that at the time of the commission of the act he was mentally capable of distinguishing between right and wrong relative to such act, and was not irresistibly impelled in its commission by reason of mental disease, he would not be excusable for same upon the ground of insanity." The attorney for the movant deals with these two grounds together in his brief and states that the excerpts of which complaint is made in these two special grounds, commingled delusional insanity with common insanity as defined under the Code. So far as the exception as set out in special ground 3 is concerned, it is but a restatement of the law contained in the Code, § 26-303. The Supreme Court in Reeves v.State, 196 Ga. 604 (2) (27 S.E.2d 375), held that it was not error to charge the provisions of that section. In theReeves case the defendant contended in his statement that at the time of the homicide and at previous times his mind was a blank. In the instant case the defendant relies on an adjudication of insanity on February 14, 1947, which adjudication was to the effect that the defendant in the instant case was violently insane. In the Reeves case the court held that in charging the Code, § 26-303, the defendant was not prejudiced. This section merely defines criminal responsibility in cases of lunatics and persons insane. In principle, we can see no greater error in charging that section in the instant case than in the Reeves case.

So far as the assignments of error on the first portion of the excerpt from the charge as set out in special ground 4 are concerned, it is contended that it was prejudicial to the movant to charge on the subject of general insanity without in the same connection making it clear that delusional insanity should be charged as an exception to general insanity. We do not think that the charge as a whole is subject to this criticism either underReeves v. State, supra, or Smith v. State, 196 Ga. 595 (27 S.E.2d 369). With reference to the latter portion of the excerpt from the charge of the court as set out in special ground 4, the Supreme Court in Barker v. State, 188 Ga. 332 (3) (4 S.E.2d, 31), held that the following language "the perpetrator may be insane in the loose and general sense, and yet be, in the eyes of the law, sane and responsible so far as the act in question is concerned" was not reversible error. So when we view the assignments of error in the grounds now under consideration in the instant case, under the facts and the whole charge in the light of the decisions in the Barker, Smith, and Reeves cases, there appears no reversible error. Concerning the general law relative to insanity which we think was properly charged, when we consider the charge of the court as a whole, we call attention to Rozier v. State, 185 Ga. 317, 320 (1, 2) (195 S.E. 172); Griffin v. State, 195 Ga. 368 (24 S.E.2d 399), and Hubbard v. State, 197 Ga. 77 (28 S.E.2d 115). We find no cause for reversal under the assignments of error in special grounds 3 and 4.

The court did not err in overruling the motion as amended for any of the reasons assigned.

Judgment affirmed. MacIntyre, P. J., and Townsend, J.,concur.