Butler v. State

Weltner, Justice,

dissenting.

The question before us, as in Brown v. State, 250 Ga. 66, 69 (c) (295 SE2d 727) (1982), is “on whom the burden of proof lay in this case. ...” The majority holds that “an order of the Probate Court finding one a ‘mentally ill person requiring involuntary treatment,’ OCGA § 37-3-1 (12) (Code Ann. § 88-501), cancels a previously existing presumption of sanity and raises a presumption of insanity.” (Opinion, p. 137) In Brown, we recognized that “ ‘special plea of insanity’ is a misnomer because the issue is one of incompetence [to stand trial] rather than insanity. Echols v. State, 149 Ga. App. 620 (255 SE2d 92) (1979). A general plea of insanity, on the other hand, raises insanity as a defense and is an inquiry into whether the defendant could distinguish between right and wrong, or was suffering from a delusional compulsion, at the time of the crime. [OCGA §§ 16-3-2,16-3-3 (Code Ann. §§ 26-702,26-703)].” 250 Ga. at 70. We can clarify this whole field by discarding the ambiguous term “insanity,” and speak instead in terms of issues, which will include competence to stand trial, ability to distinguish right and wrong, and delusional compulsion. See Rooks v. Rooks, 252 Ga. 11 (311 SE2d 169) (1984).

Seen in this light, the distinction between the involuntary civil commitment standard applicable to a person “mentally ill . . . requiring involuntary treatment” and a defense of inability to distinguish between right and wrong becomes apparent: the former has no necessary relationship to the latter. Hence, evidence of civil commitment cannot be, of itself, sufficient to shift the burden of proof to the state.

The jury having found as a fact that Butler was able to distinguish right from wrong, I would affirm the conviction.

Beyond the foregoing analysis, it is important, I believe, to consider the practical effect of the majority opinion on some 5,100 persons now committed to mental health institutions operated by the state. Whatever the cause for such a commitment, we have now removed from any conduct, of any one of these, the presumption of sanity; we have now burdened the state with the task of proving sanity as an affirmative requirement, beyond a reasonable doubt.

It is difficult to visualize how that burden might be carried in the future, bearing in mind the sanctuaries with which our law surrounds criminal defendants, withholding from the state practically every part of the truth-finding machinery which is readily available to every party in every civil matter.