Diamond v. State ( 1924 )

ON PETITION FOR SANITY INQUEST. This court affirmed a judgment of the Porter Circuit Court by which appellant was sentenced to death, on June 24, 1924, and afterwards denied his petition for rehearing on October 14, 1924. In the meantime it had entered an order staying execution of the death sentence until November 14, 1924. His attorneys have filed a petition supported by affidavits, stating that since the entry of judgment and the imposition of the sentence of death appellant has become and is now insane, and is incapable of realizing that he is under sentence of death, to be executed on November 14, 1924, unless he shall show cause why execution should not be done at that time, and praying that this court will direct and authorize the circuit court of Porter county to receive and act upon a petition on behalf of appellant, asking that said court, with the aid of a jury shall try and determine the question whether or not he has so become insane.

The powers of the government are divided into three separate departments: the legislative, the executive, including the administrative, and the judicial; and no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in the constitution expressly provided. Indiana Constitution, Art. 3, § 96 Burns 1914.

The Governor shall have the power to grant reprieves, commutations, and pardons, after conviction, for all offenses except treason and cases of impeachment, subject to such regulations as may be provided by law. § 17, Art. 5, Indiana Constitution, § 143 Burns 1914. The Supreme Court has power to stay the execution of a capital sentence for such a period of time as is required to give an opportunity to examine and decide the questions presented by the record, on appeal from the 11. judgment imposing such sentence, this being a necessary attribute of the power to hear and decide appeals.Parker v. State (1893), 135 Ind. 534, 35 N.E. 179.

But except in the exercise of its power to hear appeals and otherwise to review the action of trial courts, the Supreme Court cannot stay the execution of a judgment and it cannot grant reprieves for any purpose, that power belonging exclusively to the Governor.

Counsel for the petitioner cite the case of People v. Geary (1921), 298 Ill. 236, 131 N.E. 652, in which the Supreme Court of Illinois construed a statute which provided that if, after judgment and before execution of the sentence, a person convicted of a capital offense should become lunatic or insane, the execution of the sentence of death should be stayed until the recovery of such person from the insanity or lunacy; and that in such a case it should be the duty of the court to impanel a jury to try the question whether the accused be, at the time of the impanelling, insane or lunatic (§ 13 of Div. 2, par. 285, Ill. Crim. Code, Hurd's Stat. 1917 p. 1016). There is no such statute in the State of Indiana. The one which most nearly resembles it is ch. 103, Acts 1905 p. 174 (§§ 2177-2180 Burns 1914). But that statute does not give the 12. person found guilty of a capital offense any absolute right to a trial by jury of the question whether he has become insane since the verdict was returned, but only provides "that when the defendant in a criminal case appears for judgment, and the court, either from his own knowledge or upon the suggestion of any person, has reasonable ground for believing the defendant to be insane, the question of his insanity shall be determined by twelve qualified jurors, to be summoned and impanelled as directed by the court," etc. And having made the calling of a jury to depend upon the court having reasonable ground for believing the defendant insane when he appears for judgment, the statute contains no provision whatever, such as is found in the Illinois statute for calling a jury to inquire as to the sanity of the defendant after judgment has been pronounced.

Counsel refer to § 2071d Burns 1914 (§ 6, ch. 298, Acts 1913 p. 775) but that relates to the procedure when the court has reasonable ground to believe that an accused person is insane "before the final submission of the cause to the court or jury trying the same," and not to proceedings after final judgment.

The appeal to this court has been finally disposed of and the court has no further jurisdiction to interfere with the execution of the sentence imposed, as incident to the exercise of appellate jurisdiction. And the statute does not provide for a judicial inquiry by the trial court concerning the sanity of the prisoner after he has appeared for judgment and sentence has been pronounced.

We are not here concerned with an absolute right of Harry Diamond, but with a matter of humanity and public conscience to prevent the execution of a man alleged to be deprived of reason. Under the common law this was committed to the sound discretion of the court, which had power to grant reprieves in proper cases.Nobles v. Georgia (1897), 168 U.S. 398, 402, 18 Sup. Ct. 87, 42 L. Ed. 515; Chitty, Blackstone, book 4, (star paging) 24, 25, 396.

But by the constitution of Indiana the power to grant reprieves and pardons is vested in the Governor alone. Art. 5, § 17, Constitution.

Statutes have been enacted which provide a method for bringing the insanity of a convicted person to the Governor's attention. §§ 3478, 3479 Burns 1914.

But the procedure prescribed by statute is not exclusive. The qualification expressed by the constitution that the Governor may grant reprieves "subject to such regulations as may be 13. provided by law" does not limit in any degree his power as Governor to act on a petition for a reprieve that may come before him otherwise than in the manner which the statute outlines. Even though there were no such statute or without regard to its provisions a petition for executive clemency because of the insanity of the prisoner might be presented to the Governor in like manner and with like effect as in other cases.

The attorneys for appellant have mistaken their remedy.

The petition and supplemental petition for a further stay of execution, to be ordered by this court, are overruled.