
    Evans v. The State of Ohio.
    (No. 22203
    Decided December 17, 1930.)
    
      
      Mr. M. Froome Barbour and Mr. W. Donald Hall, for plaintiff in error.
    
      Mr. Nelson Schwab, prosecuting attorney, Mr. Dudley Miller Outcalt and Mr. Simon L. Leis, for defendant in error.
   Allen, J.

This record presents the question of the construction of Sections 13441-1 and 13441-2, General Code (113 Ohio Laws, 177), which read as follows:

Section 13441-1: “If the attorney for a person accused of crime pending in the court of common pleas, whether before or after trial suggests to the court that such person is not then sane, and a certificate of a reputable physician to that effect is presented to the court, or if the grand jury represents to the court that any such person is not then sane, or if it otherwise comes to the notice of the court that such person is not then sane, the court shall proceed to examine into the question of the sanity or insanity of said person, or in its discretion may impanel a jury for such purpose. If three-fourths of such jury agree upon a verdict, such verdict may be returned as the verdict of the jury. If there be a jury trial and three-fourths of the jury do not agree, another jury may be impaneled to try such question.”

Section 13441-2: “If the court or jury find upon the hearing provided for in the next preceding section, that the accused is sane, he shall be proceeded against as provided by law. If the court or jury find him to be not sane, he shall be forthwith committed by tbe court to an insane hospital within the jurisdiction of the court; provided, that if the court deem it advisable, it shall commit such person to the Lima State Hospital until he be restored to reason, and upon being restored to reason the accused shall be proceeded against as provided by law. ’ ’

The question arises on the record in the following manner: Prior to the commencement of the trial, counsel for Evans filed a motion which suggested the present insanity of the accused, and in such motion the accused offered to submit himself for examination to determine his mental condition at that time. The trial judge refused to grant a continuance for the purpose of determining Evans’ present mental condition, but did appoint a physician specializing in mental diseases to examine and inquire into his mental condition.

The case proceeded to trial. At the trial, in the opening statement of counsel, attorneys for the defense stated that the evidence would show that the accused “at this time,” that is, in August, the time when the homicide was committed, “was not of sound mind and at the time that this happened was insane. ’ ’ At the conclusion of the opening statement made on behalf of the defense, the prosecutor asked:

“Mr. Leis: Do I understand the defendant is not sane now?
“Mr. Barbour: Yes.
“Mr. Leis. Sane at the time he committed the crime and not now.
“Mr. Barbour: He was insane at the time he committed the crime and he is insane now. ’ ’
“Mr. Barbour: We will further show, the testimony, as I say, will show, I think, without any doubt, the man is not of sound mind.”

After counsel for the state had rested his case, which was short and not involved, counsel for the accused requested the court to adjourn until the next morning in order that the alienist appointed by the court to examine the accused might complete his examination and be prepared to testify. This request was refused by the court.

The court also sustained an objection to a question asked of Dr. William T. Lindsay, attending physician at the Hamilton county jail, as to whether or not he had had an opportunity to observe the accused and determine his mental condition.

It is suggested that Section 13441-1, General Code, requires the representation of insanity, in order to compel the attention of the court, to be made before or after, and not during, the trial. This seems a strained construction of the statute. Analyzing the section, we find, first, that the attorney for a person accused of crime “pending in the court of common pleas” may suggest to the court that such person is not then sane. The phrase “pending in the court of common pleas” certainly contemplates that the representation of insanity may be made at the time that the trial is pending in the court of common pleas. It indicates that the Legislature desired to take care of the situation where a defendant is actually insane at the time of the trial. The words relied upon for the argument, that the court may disregard a representation of insanity made during the trial, are not “either before or after trial,” but “whether before or after trial. ’ ’ The use of the word “ whether ’ ’ emphasizes the intention of the Legislature to safeguard, rather than to curtail, the rights of an insane defendant. These words mean that, regardless of the time of suggestion, with reference to whether it is before or after the trial, an attorney may, by presenting the certificate of a reputable physician, compel an examination into the mental condition of the defendant. Also the fact that the phrase “before or after the trial” qualifies this initial phrase only is shown by the fact that a second provision is enacted, namely, that the grand jury may represent to the court that any such accused is not then sane. Any such representation by the grand jury would of course come before, and not after, the trial. Then follows the significant phrase, “or if it otherwise comes to the notice of the court that, such person is not then sane.” No limitation of time whatever is attached to this phrase, and in the opinion of the majority of the court no such limitation is intended, except that the case be “pending in the court of common pleas.” Certainly orderly procedure would hardly be enhanced by conducting a trial of a person actually insane. If such a trial has taken place without knowledge of the insanity, the inquiry may, under this section, be instituted after the trial; but, if insanity does exist, certainly the inquiry should if possible take place before completing the costly and intricate proceedings of a criminal trial' such as this, which was1 a capital case.

It is argued that all of the defendant’s rights under this section would have been preserved had the attorneys acted differently. The record shows that in this case the attorneys were appointed by the court. But, regardless of that fact, we challenge the theory that the entire responsibility for the conduct of the trial of a person claiming in good faith to be insane, particularly in a capital case, can be confided to his lawyer alone. The law does unfortunately penalize, not only in civil cases but in criminal cases, sane men for the dereliction of their attorneys. To extend this penalization to persons charged with capital offenses, claiming in good faith to be insane, is an extent to which the law heretofore has not proceeded. It is unfair to the accused to bind him, in facts going to the very essence of the case, by the acts of his lawyer, when such accused claims to be insane.

The fact that the attorneys were appointed by the court, on account of the fact that the defendant had not means to procure counsel of his own, is significant with reference to their ability to procure expert testimony upon the defense of insanity. It is true that expert testimony upon that point has been abused; but it is also true that, when the defendant is indigent, an examination by an alienist must as a practical matter be secured under the order of the court. The court did, upon November 4, appoint a physician to examine the accused. November 4 was occupied in qualification of the jury, opening statements of counsel, and a view of premises by the jury. It does not appear what was done upon November 5. Upon November 6 the state proceeded with its case, and upon conclusion of the state’s case, one of the attorneys for the accused requested the court to adjourn until the following morning in order that the alienist appointed by the court to examine the accused might complete his examination and be prepared to testify, inasmuch as the only witnesses for the defense would be Dr. Wolf stein, the alienist, and the defendant himself. This request was refused by the court, and proper exception taken. Hence the court himself made it impossible for the attorneys for the accused to secure the certificate necessary under the first clause of the section by refusing to extend the time of examination. The defendant was compelled to be continuously in court, for all periods of the trial, and the record does not show anywhere that the alienist had, at the time the application for continuance was made, completed his examination, nor does it show that he at any time completed his examination. It is a well-known fact that an alienist cannot properly examine a case within the space of a few hours. The ordinary time for such examination in reputable insane asylums is three days. Having therefore made it impossible for the attorneys to present the certificate of the only physician whose services they could command for an indigent person, the court then failed to consider that the matter had come to his attention under the statute.

We do not deem it necessary under this record to consider the refusal of the court under Section 13140-2, G-eneral Code (113 Ohio Laws, 175), to permit testimony to be offered as to the insanity of the accused at the time of the commission of the offense, nor to go into the question of the grave doubt as to the constitutionality of the provision establishing a conclusive presumption of sanity from the failure of the attorney to file a written plea of not guilty by reason of insanity. Two of the members of this court, including the writer of this opinion, are convinced that an enactment which would deprive an insane person of a defense going to the very vitals of his case, because of non-action upon the part of Ms attorney, would necessarily be unconstitutional, upon the ground that it would deprive such insane person of due process of law. We simply consider the question whether the court committed reversible error in refusing to investigate the mental condition of the accused at the time of the trial. The court apparently considered that, because the attorneys in the case had not presented the certificate of a reputable physician to the effect that the accused was not then sane, the court could ignore the frequent and continued representations of the accused’s counsel as to the mental condition of the accused at the time of trial. We do not so read the statute. It is true that it might be more clearly phrased. It is also true that the first clause, which provides for suggestion by the attorney that the accused is insane, calls for the certificate of a reputable physician. However, the statute then proceeds to declare that, “if it otherwise comes to the notice of the court that such person is not then sane the court shall proceed to examine into the question of the sanity or insanity of said person, or in its discretion may impanel a jury for such purpose.” Certainly it came “to the notice of the court” that it was claimed that the accused was “not then sane.”

It appeared to be the theory of the court that without an examination he could decide whether or not a notice given him that the accused was not then sane was true. We look upon the duty resting upon the court under the circumstances of this record as being mandatory. We think that there cannot rightly be, either under the statute or under the inherent power and duty of the court, a criminal trial of a person not sane at the time of the trial.

Furthermore, we think that there cannot be a decisión by the court that the person stated to be then insane is then sane without an investigation into the question of the sanity of the accused. The statute gives the court an option as to how it shall proceed under the circumstances. The court may itself proceed to examine into the question of the sanity or insanity of such person, or may impanel a jury for such purpose. The investigation must be conducted in one or the other of the methods indicated, and must be conducted whenever in good faith it is stated to the court that the defendant at the time of the trial is not then sane: In other words, under the circumstances of this record, the court is compelled to investigate the question of the sanity of the accused, and hence the accused is assured of an inquiry into his mental condition, not at the discretion of the court, but as a matter of right. This the trial court never gave.

The case of People v. Hickman, 204 Cal., 470, 268 P., 909, 270 P., 1117, has no bearing upon this controversy. In that case a judicial determination of the sanity of Hickman was made. Here the accused has never had a judicial inquiry into his mental condition. He is entitled to such an investigation as a matter of right.

Entertaining these views, the judgment of the Court of Appeals will be reversed and the cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

Kinkade, Robinson, Jones and Matthias, JJ., concur.

Marshall, C. J., and Day, J., dissent.

Jones, J.,

concur ring. I concur in the syllabus and in the judgment of reversal. However after a full consideration of this record, I am of the opinion that the state failed to prove murder in the first degree beyond a reasonable doubt. While the evidence would have sustained a verdict of murder in the lesser degrees, it did not establish, by the quantum of proof required, the elements of deliberation and premeditation necessary for conviction of first degree murder.

In view of this reversal, it does not become necessary to pass upon the efforts of the defendant to submit evidence of his insanity at the time of committing the offense, when he had failed to plead “not guilty by reason of insanity” under Section 13440-2, General Code; this for the reason that the defendant may, and probably will, avail himself of such a plea upon his next trial.

Marshall, C. J.,

dissenting. .The majority opinion in this case deals with the single question whether the trial court may, during the progress of the trial, suspend the proceeding in order that an inquiry may forthwith be made as to whether or not the accused is then sane. The question depends upon the interpretation of Section 13441-1, General Code, which section will be found quoted in the majority opinion. The syllabus pronounced by the majority states that the court is required forthwith to make the inquiry if during the trial it comes to the notice of the court that the accused is not then sane. I find no such authority in the statute. The statute is very plain in enjoining that it is only when a showing is made, either before or after the trial, that the court shall proceed to examine the question of the present sanity of the accused. This pronouncement on the part of the majority of this court makes an addition to the statute which the Legislature certainly did not declare, although it is fair to suppose that that feature of the case must have been in contemplation. A study of that section in connection with other related sections leads to the inevitable conclusion that the entire purpose of those sections was to create a more orderly proceeding for the determination of the sanity or insanity of the accused than the procedure which has heretofore prevailed. Heretofore the accused was not required to give the state any notice that the defense of insanity would be made, either relating to the mental condition of the accused at the time of the commission of the offense or at the time of trial. It was' to avoid this situation and to permit the state to make preparation for such a defense that these amendments were enacted. Another section of the statute requires that, if it is expected to defend on the ground that the accused was not sane at the time of the commission of the offense, that defense must be pleaded in writing before the beginning of the trial. The defense that the accused was not sane at the time of trial may be asserted either before or after the trial, but, if the very plain language of the section is not to be disregarded, and if we are not to add something to the statute which the Legislature did not assert, and as we view it did not intend to assert, then the inquiry into the present sanity of the accused must either be asserted before the trial or the inquiry postponed until after the trial.

If it is urged that there can be no legal inquiry as to the guilt of an accused person who is mentally incompetent, it may be answered that that is one of the things which must be determined, and, unless the alleged mental incapacity had its inception after the beginning of the trial, no reason is apparent why counsel representing the accused should not be required to comply with the plain provisions of the statute.

The majority opinion correctly states that during the progress of the trial, and after the state had rested, counsel for the accused requested a continuance, and stated that “he was insane at the time he committed the crime and he is insane now. ’ ’ There was not even a suggestion that any change had occurred in his mental condition. Counsel was asserting a condition which he claimed had existed for months and was still continuing. If he was insane when he committed the offense, it was the duty of counsel to plead that defense in writing before the commencement of the trial. If counsel believed that he continued to be insane, and desired a trial of the issue of present insanity, that course was open either before or after the trial upon his presenting “a certificate of a reputable physician to that effect.” Having provided a specific method of bringing that matter before the court, it will not be open to counsel to proceed in some other manner not authorized. Manifestly no evidence of insanity would be convincing without the support of the evidence of a physician. It cannot be claimed, therefore, that the requirement of presenting a physician’s certificate imposes a burdensome condition upon the accused or his counsel. It would be the most simple and effective method, and anything less effective should not be countenanced in a court of justice. It is true that the statute authorizes the court to act “if it otherwise comes to the notice of the court.” Can it be said that this general provision abrogates and nullifies the specific provision?

In either event, and in any event, the action of the court must be invoiced either before or after the trial and not during its progress.

Counsel for the accused, in making preparation for the defense, must have, learned of his mental deficiency, and there is no hardship in requiring them to apprise the court of what they have found before the trial begins. Surely nothing substantial to the accused is gained by postponing the presentation of a certificate of a physician until after the trial begins. The only apparent advantage which can accrue to the accused is that suspension of the trial after it has been begun causes a confusion of issues which might result to an advantage solely because of such confusion. An accused person, sane or insane, must necessarily depend for the character of his defense upon his counsel. It is not unfair to him and it is only fair to the state that counsel be charged with that responsibility and that the responsibility be discharged before the time of the beginning of the trial.

The amendment to the statute imposes a rule of practice and procedure. If the meaning of the statute is clear, as it certainly seems to be, there can be - no question of the power of the Legislature to make such rule of practice and procedure. Comparatively recent legislation has been enacted by a number of states of the Union, notably the states of Alabama, Wisconsin, California, Colorado, Indiana, and Washington, establishing more orderly practice and procedure in criminal cases where insanity is pleaded as a defense. The constitutionality of these statutes has been upheld in the following cases: Perry v. State, 87 Ala., 30, 6 So., 425; Bennett v. State, 57 Wis., 69, 14 N. W., 912, 46 Am. Rep., 26; People v. Hickman, 204 Cal., 470, 268 P., 909, 270 P., 1117. These cases do not directly involve the same issues as are involved in the ease at bar, but they uphold principles closely related thereto.

The language of the statute being clear, it ought to be observed, unless the Legislature was without power to enact it; that is to say, the trial should not be suspended unless the Legislature has authorized such suspension; or, to state the proposition conversely, the statute having only authorized the inquiry before or after trial, and not having authorized it during the suspension, the court is without power to order the suspension in order to make the ancillary inquiry.

It is a matter of general knowledge because a matter of general notoriety, if not, in fact, a matter of general judicial scandal, that a number of cases in recent years have occupied the time of courts and juries for periods of many weeks while high-powered alienists and mental specialists have provided much entertainment with little real enlightenment upon insanity issues. Such a spectacle is deplorable when it is the main issue to be determined. It would be intolerable if tried as an ancillary issue, while the main issue is suspended and the regular jury kept in confinement awaiting its termination.

It is noteworthy that the majority of the court do not challenge the constitutionality of this statute in any of its provisions. If the statute is valid, it should not be nullified by interpretation.

Day, J.,

dissenting. I am unable to concur with the conclusion of the majority, for the reason that in my opinion the trial court committed no error in his application of the provisions of Sections 13441-1 and 13441-2 to the case at bar. In the light of the entire record, the accused was not denied a fair trial, and the judgment should therefore be affirmed.  