Bobby Jack Howard v. United States

Dunnam, Tex., Jr., Waco, ap- W. V. Bobby HOWARD, Appellant, Jack pellant. Lonny Zwiener, Atty., F. Asst. U. S. UNITED STATES of America Tex., Austin, Wine, Russell B. U. S. Appellee. Atty., Antonio, Tex., appellee. San No. 15665. HOLMES, Before and CAM- RIVES Appeals United States Court of Judges. ERON, Circuit Fifth Circuit. Feb. CAMERON, Judge. Circuit Rehearing Judgment Vacated on presented appeal The April 20, 1956. correctly is whether the Court below in connection with the

plea only de- was the appellant sought fense support in Bobby Court below. Jack Howard charging convicted under an indictment robbery him with the of the Farmers Meridian, by put- Texas, State Bank of ting person jeopardy the life of a through dangerous weapon the use of a 2113(d), violation of 18 U.S.C.A. § twenty-five and was sentenced to serve years imprisonment. tending to con- evidence

He offered evidence as the Government’s trovert crime, the commission clearly supports the verdict evidence January establishing that, on the 31, 1955, using Howard, pointed pistol cashier, woman, said robbed fleeing $3,000.00 bank, with more than the cash taken drawer. ques- appeal raises a number of His meriting one tiоns discus- that above stated. sion is The appellant behalf of sustain offered meager alleged un- his convincing hardly to more amounts than a scintilla. by appel- witness introduced his mother who testified

lant was appellant years was about nine age, measeis which he had “settled causing head”, epilep- him to become Following tic. the seizures incident to malady appellant was said suffer ‍​​‌‌​‌‌​‌​‌‌​​​‌‌​​‌​​‌‌​‌‌​‌‌​‌‌​​​​‌‌​‌‌​‌‌‌​​‍producing headaches an abnormal severe of mind which lasted state one two only abnormality days. specified b,y disрlay itself her manifested ritability ir- normally kindly instead of diplómate categorically “member on American or disposition. When asked Neurology”, following Psychiatry during Board of period whether had, order, any opinion who examined Court she formed seizures these appellant March exam- of sound on 1955. The or he was whether “as “psychiatric time”, ination exam- re- consisted she mind at that or unsound * * ination, neurological examination, physi- “Well, plied, so not too much examination”, cal away home about also examination He had been eleetro-encephalo- with the aid of an years him less had seen she twelve graph during period. which was a “brain described as times than a dozen morning pre- wave”. that, This last was for examination on the testified She purpose any determining ceding robbery, appellant did whether damage appel- brain get up had called resulted from to breakfast when she neg- epilepsy, stating him, lant’s He moved results were that was sick. he specialist ative. The testified that from his own bed into hers because shе abnormality appellant guests chief he in that his found had she observed presented eyes type was that bloodshot, I knew that were “all anti-social personality. opinion that, his was at had one them seizures had the time of the him”. in bed examination and at the looked at He remained robbery, appellant time until about one took medicine had the o’clockand ability distinguish right During for the after- a severe headache. right. holding adhere to the noon around his head and From his ex- he sat given indicating history amination and frоm the appellant, that he inwas considerable night pain. eight specialist “concluded that About o’clockthat got past”. he had not been in in the ear and His actions insane He drove off. explained grand further epilepsy are unaccounted for from then until the mal robbery manifested itself time of the a little after one violent seizures during following patient day. which the P.M. the would be un- subject convulsions; conscious and evidence con- other Appellant’s when the end, pa- seizure was at an stipulation dictated into the aof sisted tient depleted would be left weak and agreed it was that he in which record insane; very but not percentage small Army States had enlisted epileptics were insane. granted a October, and had been following discharge year for medical was at There in the Air had enlisted epilepsy. He robbery, appellant was the time of February, had 1946 and been Force discharged possession of mental his full August, 1947, “for severe incapable of hav that he faculties or ing personality”. In anti-social сhronic distinguish intent from his forehead shrapnel was removed wrong. ing These having produced by side, been tests which a deter are the ultimate gre- explosion hand of a an accidental toas whether a de reached mination is occasions in the two different On nade. past appellant responsible his criminal fendant slashed own had acts. agreed appellant wrists, 'was attorney Appellant’s dictated seven grand epilepsy No contention is mal. exceptions pages of Court’s explosion re- the accidental made specifications embracing twenty of al- sulting shrapnel in his forehead leged than More half of error. these any with the had connection and side to the Court’s were devoted no details supposed were The chief defense at- ap- given incidents when two upon that feature of the tack made pellant wrists. own slashed charge centered around the con- Court’s conjunc- presented tention that the Court used the Government one tive, and, disjunctive, or, rebuttal, who a doctor insteаd witness in “As to errors in presenting it should the claimed what charge, that, except predicate acquittal.1 we are convinced find as a hy- perhaps from the strained and excerpts set percritical point of view once obtain- margin portions of forth in about the are ing in the review of criminal cases pages the Court three the record which longer possible but now no in the per devoted to defense. It is courts, federal action of the the trial quoted portions of ceived the that court, giving refusing сharg- and charge erroneously the rule because state es, unexceptionable. was We are to it ultimate fact is made clear convinced, too, from the considera- appel was whether determined charge whole, tion of as rather capacity to lant had sufficient mental than a view alone of isolated ques form intent. That a criminal basic portions appellant was af- deciding usually by tion resolved is oppor- forded a fair trial with full capacity mental was such whether tunity himself, including to defend the one with crime was opportunity presenting distinguish right able to between urging his defenses.” right. wrong and to adhere to The closing portion We stand under like sentence of this of the conviction charge aggravated accurately ques depicts The presented here. record an calling punishment responsibility, crime for severe tion: test of “The appellant given capacity asserted, opportunity was full to to develop distinguish right his defense of His case court-appointed was handled respect to No case the act.” attor ney brought earnestness, with unusual attention tends to skill to our which intelligence. language jury condemn forth in had set the whole marginal quotation. accurately situation before it and was in legal principles structed It further clear this lan guide should its deliberations. Its ver guage entirely proper was when fitted in imposed by dict and the sentence as a whole. The Court justified are Court dowe not feel great lengths spell went to out ac constrained to judg disturb them. The curately what must find with appealed ment from is respect insanity plea, place and to Affirmed. the burden the Government prove beyond ap a reasonable doubt that RIVES, Judge (dissenting). Circuit pellant capacity had at the time mental sufficiency sufficient to form a criminal intent. of the evidence to re- is, elementary course, quire that the submission to the of the is- deciding as a whole is looked to in primarily wheth sue of was for the correctly Spring judge. er states the law. trial Both Co. he and the had Edgar, 1878, advantage seeing v. 99 U.S. observing L.Ed. 487; States, Cir., defendant, Patterson whiсh this Court lacks. bearing pertinent 192 F.2d 631. This lan As the issue of guage judge case, was used us in the latter trial could take into page at 633: consideration not spe- the evidence following 1. The statement taken from that he had no control over his men- power Court contains the lan tal faculties and the will to con- guage challenged by appellant: actions, money trol his but took the “But, you evidence, laboring find while he was under a regard absolutely have a reasonable doubt in him, there- delusion which controlled to, that brain аt his the time com- his and that act was one of irresistible impaired by impulse, judgment, was mitted the act disease and not of and he taking money and the product was not then did right know the difference between disease, wrong; of such and that was in that event he would incapable forming intent, your acquittal.” be entitled testimony Adminis- issue, ion of the Veterans’ also cifically directed psychiatrist tration introduced appearance and demean- the defendant’s or, however, not, conclude Government did all of the and indeed jury. the court and They consider had a case. robbery dis- the circumstances witness The defendant’s no ef- mother, testimony lack of sense closed an utter has been re- whose According majority. at concealment. fort whatever ferred her, epileptic had seizure had staying The defendant day robbery, he suffered from before the uncle, short distance house of day or two severe for a after headaches Meridian, Texas, bank in which town the seizure, in an such a remained abnormal street from was located across the fully mind, state of did not under- his cousin’s office. He borrowed sheriff’s acts. stand the of his When nature automobile, bearing license 1946 Ford during asked time whether before tag 7888, parked DF he number got in the car and drove plain win- unconcealed view “any opinion off she as to formed wheth- wife, dow of The sheriff’s the bank. er he was sound or unsound mind at cashier, president, bank and the bank time,” that the mother testified: tag three, all down the took He number. entered unmasked at 1:15 so, the bank P.M. Well, “A. not too much be- robbery. figured and committed the just gоing He I cause he’s wearing grayish sport suit, maybe tweed neighbors to some of get when arrested at his uncle’s some house away he’d feel could better he later, ample six had us, you hours after he had are, how know mothers change, figured time had on he still worrying the same I and going I was him clothing. Further, hip pock- asking him how he is feel- et at ing the time of his arrest every minutes, were folded few and I bills amount thought get The to- $2425.00. he wanted to somewhere tal amount together stolen get bank was where he could back In addition $3845.00. hovering $2425.00 without me around. pocket, the defendant’s a search of his together? “Q. back Get himself $1160.00, uncle’s house disclosed a total you know. And I over A. Get less than the $60.00 amount worry much about it be- too didn’t stolen. him do I it before. have seen cause stipulated It was the defendant “Q. seen ‍​​‌‌​‌‌​‌​‌‌​​​‌‌​​‌​​‌‌​‌‌​‌‌​‌‌​​​​‌‌​‌‌​‌‌‌​​‍him have You grand epilepsy He mal. had been A. Just see after effects? those discharged twice from the Forc- Armed everything. get away from him es, epilepsy, first time in 1943 for you “Q. ordinary spells, say, again August “severe say effects; you have after he’d personality.” chronic antisocial While go days, along two sometimes military service, had he been in- during days, day, or two jured by explosion accidental of a hand opin- your day or two afterwards grenade, sequel injury and as a to such fully understand the na- he ion does shrapnel was removed from his forehead no, No, A. acts? of his ture stipulation and side in 1949. The ther disclosed fur- doesn’t, I’d I know talk to because that, “On two different oc- cross me and him and he’d be past casions in the the defendant has me to— n want wouldn’t though wrists,” slashed his own the rec- during pe- “Q. аny ord is Is himself bare details or circumstanc- No, es if was as to either of A. because those riod? occasions. kind him. He is talk to could poverty the defendant’s In view at himself.” he is appointed representation court courts, pre- the so-called surprising pro- In federal counsel, that he it is sanity imposes sumption the burden expert psychiatrist. opin- duced no with the Government the burden reasonable guilty. at the “some way favor dence, entered dict, from the trial, indicted. establish the necessary defense Giving proоf, not in criminal in effect to or to impaired by accused tablish the sanity. the bound whatever sonable will all reasonable sumption may “Strictly speaking, the burden of “* ^[*] innocence guilty jury outset on legal impair evidence” of be true the time a disprove as those crime prosecution discloses to -x- the fact is until whether, upon satisfaction to establish toBut ^[*] beginning produce sanity, doubt until it in excuse or presumption in favor of of the It is applies to constitute must * whatever side and where the require proof law, or weaken the evidence sufficient charged, the return of the ver- prosecution, crime for which he is the defendant by in a certain the facts ^[*] words are understood doubt, plea that the defendant hold that such on the of the vital crime proving is never some absolutely insanity, remains to is to the end him -X- presumption of the overthrown every his innocence the accused ‍​​‌‌​‌‌​‌​‌‌​​​‌‌​​‌​​‌‌​‌‌​‌‌​‌‌​​​​‌‌​‌‌​‌‌‌​​‍benefit prove charged. necessary all the evi- to establish prosecution extenuation the defense to the rea- the crime. ^[*] that he is casе made upon question, adduced, guilty whereupon force of sense it jury, is element nothing beyond control beyond in of the to produce -X- pre- times es- to or is appear to v. United issue of supra. ed raise insanity. Cir., by brought fendant’s must then evidence acquittal. termine App.D.C. 612, U.S. 1302; See ble contrary, be sue, shifting hypothesis cific offense United 487, 488, some ble clude is entitled to cluding sumption The function of the trial court is to de- guilt it has States, U.S.App.D.C. 386, this Court in “While also, 91 sane, 790, 616; trial, doubt. If the whole Durham is established F.2d reasonable doubt of beyond To insаnity, into of Leland v. a States, supra; sanity 88 properly States, 160 U.S. Authorities produce the burden the It is essential is 16 S.Ct. an accused admitted reasonable doubt of Durham v. United require 326, sufficient the case submitted presumption is rebutta- other the issue of v. United 72 S.Ct. court slight supplied sanity, charged.” Davis v. reasonable adduced, Lee v. United it 330-331: weight insanity, the evidence need acquittal instruct State must “some evidence” of 353, 358, 40 L.Ed. evidence, without submission in the course of beyond reasona- sufficient even is supra. by does Tatum v. Unit- 1002, States, presumed acquit. raise the evidence, in- the accused proof.”2 evidence. the doubt the of which Oregon, 469, 486, 866.1 insanity sanity, not ex- jury 96 L.Ed. States, 190 As said demand jury, the of States, spe- pre- Davis is- F.2d to U.S. the de- to is 5 2. In this connection, may pertinent it “presumption 1. treatment of tlie In its keep general mind the rule important sanity”, it the court may judge guilty direct a verdict of the confusion often save “presumption” instructions, no matter how conclusive he considers incident evidence, properly States, but must v. 342 U.S. Cf. Morissette United 288; guilt. 275, 240, 246, on the standards 96 L.Ed. 72 S.Ct. Carpenters States, Cir., Brothеrhood 5 203 v. United Wardlaw States, 884, 5; 887, v. of America v. United Barfield Unit Joiners 330 F.2d note 395, 408, 409, 775, 67 L.Ed. U.S. S.Ct. 91 States, Cir., 3 ed saying po- exclusively as a judge, test is like Certainly in better the trial only accepta- pass that matter of law that the sition than this Court question, defining symptom appendi- thought was ble the issue length pain citis in the abdomen raised, and instructed diagnostic symptom that no That other on the defense position valid.” 41 than A.B.A.J. jury, also in better Court, impressed the evidence years In the than one hundred more oc- what is demonstrated McNaghten elapsed which hаve since the its ver- to consider curred after it retired decision, has made tremendous science dict.3 understanding mys- strides its length brain, human this teries I at such have discussed evidence, laggard, prog- made some whether, while still has matter of required mile-stone to submit as is evidenced such ress trial court Pike, opinions 1869, sanity 49 N.H. because State issue of Government, 399; 577, State, in its 81 Ala. Parsons v. seems to me that States, justify 2 brief, and Durham v. United undertake So. not even does 1954, U.S.App.D.C. 228, that is- 214 F.2d 862. instructions trial court’s subject recently argues was The sue, simply error been discussed that the Judge ably by most Sobeloff the article harmless.4 referred, “Insanity to which have century majority approves old McNaghten Law; the Criminal From McNagh- “right test” Durham, Beyond”, Septem- Eng.Rep. Case, Fin. Cl. & ten ber, 1955, American issue Bar As- receiv- (1843), heretofore which has Journal, 41, pp. seq. sociation Vol. 793 et Court,5 but approval not of this the ed proper the test of While criminal re- Court, Hon- Supreme on and which the highly sponsibility debatable, now is I recently E. Sobeloff orable Simon agree with the District of Columbia Cir- commented: Sobeloff, cuit and with Mr. the that bеt- familiarly test, as known “This rule, ter more consonant with the de- wrong ‘right test’, on turns and the veloping psychiatry, science is to as- very symp- specified limited and simply, certain was the defendant suffer- no which science tom longer ing from a mental defect or disease which necessarily or even deems him caused to commit the criminal act ? most seri- typically associated Only the disorders. McNaghten, mental however, ous Even no drooling to no court, find, can be said right have idiot far I can so as has ever be- wrong, knowledge аnd stamp placed approval fore its on a gets charge into the crimi- never almost confused which so the burden of Judging charge of in- proof the issue case, nal court. sanity did the in as right-wrong according to the once, instructed the “(A was handed to from the note lack view of the of evidence Marshal.) charge thereon, the Court the court’s as to insan- They surplusage. ity to know if he want Court: “The mere If in- error, an committed to institution will be be struction error; then it was harmless guilty. Tell them he is found event for the defendant could not be prejudiced by is no answer. there an erroneous instruction of please, unsup- If Court we Dunnam: “Mr. that the court as ported defense is to request by any instruct Court to evidence. United States Cir., Klein, so of the State Texas that the laws being insane, upon provide, respectfully man that “The Government con- legal procedure upon proper he can be cludes that there is evidence of insan- record, charge ity institution. to an committed in the and the court’s issue, error, will refused. Court: That “The if it be was harm- on this exception.” Dunnam: Note our “Mr. error.” less appear it was not would “Since it States, supra. charge on 5. Lee v. United the court to incumbent ion, jury, de- he has not times, to had. That be insane several might properly instructed, reached to dis- have been unable fendant have must wrong, verdict, amply tinguish and a different shown record to what after his will. reference occurred lost control of must also have charge prompt- retired to verdict consider its were The defects 1, supra). (footnote coun- ly aptly pointed out defense sel. may court have been While district agree fully must be refusing acting within discretion in its considering whole, and so considered as a jury’s respond inquiry as to to importance of this case view of be commit- whether the of im- appellant under a sentence to an institution in ted the event twenty-five years, I at- prisonment guilty, me found were seems appendix, hereto, an entire tach as jury’s that, in view of the traditional charge particularly portion relat- perhaps suppliers of de- role as wise ing insanity, underscor- to the defense been ficiencies it would have ing seem instructions which some of the inquiry, answer that better read When me.6 exception perhaps defendant’s argu- entirety, me that it seems to its refusal to answer should sustained. superfluous to demonstrate ment is law con- Not does the Texas state McNaghten Rule, it even under the provisions committing an insane tain confusing misleading, times er- and at institution, person to district proof as to the burden roneous both could made recommendations court To test authorities, but, what State sаnity presumption of pertinent, more it seems to me that contrary is shown “until continues itself, if it the de- district court found again proven by proof,” “until he is insane, him fendant should have certified impose seems me to to be insane” Health, Secretary of Education defendant, burden might Welfare, who order him to be con- conflicting in- is not cured that error Hospital. Elizabeth fined Saint degree charge that the To any structions. insanity event, In decisions U.S.C.A. § sufficiently have been “must courts, juries, of unlike verdicts of do will,” great controlled the and to hаve by precedents, prece- and make those right couple twice thereafter progresses pro- or dents the fails law conjunctive wrong in the with the gress. test The law can come nearer to an will, inability to control the of attaining justice test if ideal instrument right finally to with the goal conclude firmly jus- keep the courts as their alone could leave test according to law. tice utter confusion. in a of While state respectfully therefore dissent. pro- law has me seems to it Exhibit “A”. beyond McNaghten, gressed the instant any charge by test. bad portion in full of the The Court’s relating particularly may may or not be ex- defendant insanity parts em- by defense of In of either reason cusable by phasized I consider erroneous: event, to a trial he fair is entitled due “Insanity defense: The defend- law, properly as a in-' process of guil- counsel, pleaded my ant, by law, opin- on the structed jury, has to determine wheth not the correct- the district court I think that jury’s is sane at the time of ly er consideration limited prerequisite trial, to a as an essential of timе of commission issue Pescor, 6 Chisholm, McIntosh v. trial. fair See United States v. the act. See 97; C.J.S., Cir., (inci- Ala., 23 Crim C.C., F. 810 S.D. 211; 940b; insanity Law, cf. dentally, § § U.S.C.A. inal most of U.S.App. States, Haislip opinion v. United from of was borrowed 91, 129 court, case). F.2d D.C. in that district court impelled ty indict- his brain and so that at the contained power, judgment, time ment, pleads reflection, at the his will defense that as a money taking and impaired from control his mental were time of the of faculties Chestnut, presence A. so that the done of E. act was an ir- Mrs. beyond impulse doubt resistible a reasоnable and uncontrollable finds charged in the in- with did him the time he committed take suffering insanity. ‍​​‌‌​‌‌​‌​‌‌​​​‌‌​​‌​​‌‌​‌‌​‌‌​‌‌​​​​‌‌​‌‌​‌‌‌​​‍act, dictment, from and he did he was not then know the dif- right wrong. If his ference brain “Every person charged with crime is condition, inwas this he cannot be presumed is, sound to be sane—that punished; but, if not in by his brain was memory and the con- discretion—until condition, punished he can be the up- by proof. trary shown No act done in law, remembering that the burden is insanity punished can a state of as an on the Government to establish that he offense. The mind, was of sound that term is exclusive reference to defendant has perfectly not meant that he was of sound the act of which he is mind, but that he had mind sufficient time of the commission of If the same. knowing wrong, and, know he was sane at time of the commis- committing act at the act, punishable sion of the ishe law. performing wrong- time he was it was a If he was insane at the of the com- time ful act in violation of human act, mission of the he is entitled to be punished therefor, he could be and that acquitted. A safe and reasonable test perform did the act beсause he appear whenever it shall was controlled irresistible and uncon- the evidence that at the ting time commit- impulses. trollable In that state of the sane, the act the defendant was ease the defendant could not be excused proven this conclusion is to the satisfac- ground and it jury, taking, tion of the (sic) con- your duty But, would be to convict him. case, sideration all the you evidence, or have if a find beyond doubt, a reasonable he will be regard thereto, reasonable doubt in Here, held amenable tо the law. wheth- that his brain at the time he committed general partial, er impaired by the act was disease and the periodical, whether continuous or the de- taking money product was the gree sufficiently it must have been disease, such incapable and that he was great to have controlled the will forming intent, and that accused at the time the commission he had no control over his mental the act. Where reason ceases to facul- power ties and the will to control his ac- mind, proven dominion ovеr the to be tions, money diseased, but took the person degree reaches a of laboring while he where under a delusion responsibility criminal ceases, accountability absolutely him, law controlled purpose punishment longer of impulse, ex- his act was one irresistible ists. judgment, and not and he did not right then know the difference test, “The real as I understand of li- wrong; in that event he would be ability nonliability, rests your acquittal. However, entitled to proposition whether at the time the de- question, you consideration of fendant, by intimidating Mrs. E. A. mind, gentlemen, must bear as I have Chestnut, presence took from her said, presumption it is a money question, did, if he he had a general experience justified brain, partially diseased it was mankind, as well as considerations diseased, diseased, or to some extent safety, public presumed that a isman diseased to the extent that he was in- proven capable forming be sane until he is intent, insane. indulged presumption that the disease had so If this taken 610s always

the' would' Government adducing necessity evi- affirmative - sanity at the of the accused dence of the requirement char- outset. And a of that , seriously delay embar- acter against- of law

rass the enforcement crime, .unnecessary.. in most cases be every Consequently, the law assumes that sane, and thus

one with crime is required

supplies in the first instance the capacity commit crime. out- authorizes ‍​​‌‌​‌‌​‌​‌‌​​​‌‌​​‌​​‌‌​‌‌​‌‌​‌‌​​​​‌‌​‌‌​‌‌‌​​‍the to assume at criminally re- set that accused acts,

sponsible but that disputa- presumption; conclusive ble, is a designated pre- or often rebuttable

sumption. ... responsibility, in- “The test of capacity

sanity asserted, is the distinguish between respect to the act.”

Larry KLEPAL, as Administrator Goods, Klepal, Deceased, Chattels and Credits Larr y Plaintiff-Appellee, RAILROAD COM

PENNSYLVANIA Defendant-Appellant. PANY, Docket

No. Appeal States Court s Circuit. Second

Argued Jan.

Decided Jan.

Case Details

Case Name: Bobby Jack Howard v. United States

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 20, 1956

Citation: 229 F.2d 602

Docket Number: 15665_1

Court Abbreviation: 5th Cir.