Whitaker v. State , 240 Ind. 676 ( 1960 )

JACKSON, C. J.

The appellant was charged, by in-

dictment in the Vigo Circuit Court, with the crime of murder in the first degree under Acts 1941, ch. 148, §1, p. 447, being §10-3401, Burns’ 1956 Replacement, as the result of the death of his daughter by shooting. Trial was had by jury resulting in a conviction of the appellant and the imposition of a death sentence. From such conviction and sentence stems this appeal.

The indictment herein, omitting formal parts, reads as follows:

“. . . that one Thomas W. Whitaker, late of said County and State, at said County and State aforesaid, did then and there unlawfully, feloniously, purposely and with premeditated malice kill and murder one Regina Whitaker by then and thereon the 25th day of June, A.D., 1957, unlawfully, feloniously, purposely and with premeditated malice shooting at, against and into the body of the said Regina Whitaker, with a certain deadly weapon, to-wit: a firearm, then and there loaded with gunpowder and leaden balls, which said deadly weapon, he, the said Thomas Whitaker then and there had and held in and thereby inflicted a mortal wound upon the said Regina Whitaker, of which mortal wound, inflicted by the said Thomas Whitaker, the said Regina Whitaker sickened and languished, and so languishing, did on the said County of Vigo, State of Indiana, on the 15th day of July, A.D., ,1957, die; and so the Grand Jury aforesaid, on their oath aforesaid, do say and charge that Thomas Whitaker did in the manner and form aforesaid, unlawfully, feloniously, purposely, and with premeditated malice kill and murder the said Regina Whitaker, all being then and there contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Indiana.”

The indictment was tested by motion to quash, which motion was overruled; the appellant then entered a plea of not guilty on account of unsoundness of mind, to which plea the State of Indiana filed answer specifically denying the same.

There was a conflict in the evidence on the question of insanity, and there was sufficient evidence adduced to require the state to prove beyond a reasonable doubt that the appellant was of sound mind at the time the shooting occurred. This burden never shifted from the State. Flowers v. State (1956), 286 Ind. 151, 160, 189 N. E. 2d 185; Noelke v. State (1938), 214 Ind. 427, 433, 15 N. E. 2d 950; McHargue v. State (1923), 193 Ind. 204, 211, 139 N. E. 316; Walters v. State (1915), 183 Ind. 178, 179, 108 N. E. 583.

The assignment of errors contains six specifications, however, because of the result which we have reached, we need consider only assigned error number six, which reads as follows:

"6. The Court erred in overruling defendant’s, (Appellant) motion for new trial.”

The motion for new trial contains fifty-six (56) separate grounds, some of which assign the same ruling challenged by the assignment of errors. For the purpose of this appeal we may dismiss from consideration all of the causes enumerated other than those numbered 7, 8, 22, 24, 26, 28, 30, 32 and 34 of the motion for a new trial.

Because the errors therein alleged are likely to occur on a retrial we deem it necessary to consider assigned causes for a new trial numbered seven and eight. The appellant for cause number seven of his motion for new trial complains of the giving of State’s instruction number eight, and likewise assigns as cause number eight of the motion for new trial error in giving State’s instruction number eleven. Because of the similarity of the questions raised by said assignment we will consider these specifications together.

Instruction number eight reads as follows:

“Under our law, a person of unsound mind cannot be convicted of any crime, but, even though there was some mental derangement, still if the defendant, Thomas Whitaker, had mental capacity sufficient to adequately comprehend the nature and consequence of his act, and unimpaired will power fully sufficient to control an impulse to commit crime, he is not entitled to an acquittal upon the grounds of unsound mind.”

Instruction number eleven reads as follows:

“Insanity means such a perverted and deranged condition of the mental and moral faculties as to render a person incapable of distinguishing between right and wrong, or not conscious at the time of the nature of the act which he is committing; and also where, though conscious of it, and able to distinguish between right and wrong and knowing that the act is wrong, yet a person’s will, by which is meant the governing power of his mind, has been so completely destroyed that his actions are not subject to his volition, and are beyond his control. Where this condition exists, a person cannot be held guilty for crime.”

The objections to each of these instructions are essentially (1) that they are in conflict with the laws of this state, (2) that they invade the province of the jury, (3) that they eliminate the law of reasonable doubt, (4) that the instruction does not contain all the elements required in such an instruction.

This court in Flowers v. State, supra, (1956), 236 Ind. 151, 163, 139 N. E. 2d 185, stated:

“When an accused files a plea that he was of unsound mind and there has been some evidence on this, the decisions of this court are clear the State must prove:

“1. That the accused could know and comprehend the nature and consequences of his act. The nature of the act embraces knowledge on his part that the act was wrong, for if the accused be unable to distinguish right from wrong he would not know the nature of his act.

“2. That the accused had sufficient will power to control his impulse to commit the act charged.

“If the state fails to prove either requirement beyond a reasonable doubt there has been a failure of proof on this issue.” Goodwin v. The State (1884), 96 Ind. 550, 576; Morgan v. State (1921), 190 Ind. 411, 417, 130 N. E. 528; Swain v. State (1939), 215 Ind. 259, 268, 18 N. E. 2d 921; Sweet v. State (1941), 218 Ind. 182, 190, 31 N. E. 2d 993; Kallas v. State (1949), 227 Ind. 103, 122, 83 N. E. 2d 769; Flowers v. State (1956), 236 Ind. 151, 139 N. E. 2d 185.

The instructions complained of were erroneous and should not have been given. Instruction number eight eliminated the requirement that the State prove sanity beyond a reasonable doubt, and prohibited an acquittal on the mental capacity appellant had, not on the mental capacity the State proved he had beyond a reasonable doubt.

This court held an identical instruction be erroneous in Flowers v. State, supra, (1956), 236 Ind. 151, 160, 161, 139 N. E. 2d 185, and under the law and the evidence in the record here, as was true in the Flowers case, it was the duty of the State to prove the appellant sane beyond a reasonable doubt.

If the instruction was erroneous in the Flowers case it is erroneous under the evidence in this case.

Instruction number eleven does not correctly state the law in Indiana as it pertains to insanity which will relieve an accused of criminal responsibility. See: Kallas v. State (1949), 227 Ind. 103, 83 N. E. 2d 769; Swain v. State (1939), 215 Ind. 259, 18 N. E. 2d 921; Goodwin v. The State (1884), 96 Ind. 550.

.Causes numbered 22, 24, 26, 28, 30, 32 and 34 of the defendant’s motion for a new trial relate to the refusal of the court to grant the defendant’s request to keep the jurors intact. Motions to do so were timely filed and renewed at the close of each day’s testimony before adjournment.

In these several motions appellant requested that the jurors be kept in charge of the bailiff in a private room, not be allowed to mingle in the corridor of the court house, that they be kept at a hotel without a radio, television, or newspaper facilities, that they not be allowed to go home at night, and that they not be permitted to separate for lunch. It further appears from the record that the appellant orally and in writing, during the voir dire examination and during the trial seven times objected to the jury separating.

‘‘The law which governs the matter of the separation of trial jury during and before a verdict is returned, or the jury discharged, is the common law, as interpreted by our courts, and not the statute. In Indiana, the common law has been recognized to the extent that the trial jury in the trial of a felonious offense, may not be allowed to separate at any time during the trial and until after verdict. Jones v. State (1831), 2 Blackf. (Ind.) 475. Later the rule was modified, to the extent that judicial permission for the jury to separate during the trial, without the consent of the defendant, was error. McCorkle v. State (1859), 14 Ind. 39, 41. There is no doubt that the court’s permission for the jury to separate during the trial of the cause, over the objection of the defendant, ■was error. Quinn v. State (1860), 14 Ind. 589; Anderson v. State (1867), 28 Ind. 22, 24. This rule of law has been very recently upheld so that further reasoning would be of no avail. Faulkner v. State (1923), 193 Ind. 663, 141 N. E. 514; McKinney v. People (1845), 7 Ill. 540, 43 Am. Dec. 65, see note p. 80.” Silverman v. State (1927), 199 Ind. 225, 230, 156 N. E. 549.¹

The reason for this rule has not changed and we see no reason to overthrow it.

The court erred in permitting the jury to separate during the trial and before a verdict was returned over the objections of the defendant-appellant.

There are other errors assigned by the appellant, but in view of our decision, we feel it unnecessary to discuss these points since it is not likely that the questions will arise again on a retrial.

The action of the court, in overruling defendant-appellant’s motion for a new trial was error. The judgment of the trial court is reversed with directions to sustain the motion for a new trial.

Judgment reversed.

Bobbitt, J., concurs. Achor, J., concurs with opinion. Arterburn, J., dissents in part and concurs in part with opinion. Landis, J., concurs in opinion written by Achor, J.

1 . In the opinion written by Judge Arterburn there appears the following statement “The appellant relies upon the cases of Silverman v. State (1927), 199 Ind. 225, 156 N. E. 549 and Faulkner v. State (1923), 193 Ind. 663, 141 N. E. 514.” True those eases dealt with felonies which did not involve capital punishment, but did involve the question of reversible error in permitting the jury to separate over the objections of the defendant.