COMMONWEALTH of Kentucky, Appellant, v. Neil F. STRICKLAND, Appellee.
Court of Appeals of Kentucky.
Feb. 14, 1964.
375 S.W.2d 701
Evidence which merely furnishes a basis of conjecture, surmise or speculation is not sufficient upon which to rest a verdict of a jury. Park Circuit & Realty Company v. Ringo‘s Guardian, 242 Ky. 255, 46 S.W.2d 106. The scintilla rule has been abolished in Kentucky. Nugent v. Nugent‘s Ex‘r, 281 Ky. 263, 135 S.W.2d 877. There is no evidence of substantive value to support the jury‘s verdict against Blue Diamond, and the judgment must be reversed.
The Wage Agreement sued on expressly recognizes the right of Blue Diamond to lease out its coal and to buy and purchase coal from others. The only prohibition against acquiring coal from others is where such coal was produced under a contract or wage agreement less favorable to the employees than those contained in the Wage Agreement sued on. The plaintiffs and their union had their contract with Durbin. It was their responsibility to see to the enforcement of the terms of the contract with Durbin. It was not the responsibility of Blue Diamond. If Blue Diamond was acquiring coal that was produced under an agreement less favorable to the plaintiffs than the agreement sued on, then the agreement sued on provided for a method by which such matter could be rectified. The agreement provided for a committee consisting jointly of representatives of labor and management. If coal was being purchased or acquired by a party to the wage agreement sued on which was produced under terms less favorable to the employees than the contract sued on, such fact should have been brought to the attention of the offending party. After a hearing before the committee, the offending party would have had an opportunity to effect compliance. A finding of violation by the committee is a condition precedent to any final determination that a violation of the agreement sued on had occurred. This machinery was never resorted to and was a condition precedent to the suit herein against Blue Diamond. Gatliff Coal Co. v. Cox, 6 Cir., 142 F.2d 876.
Blue Diamond moved for a directed verdict at the conclusion of the evidence for plaintiffs. It should have been sustained. At the close of all the evidence Blue Diamond again moved for a directed verdict. It should have been sustained. Instead, the issue was presented to a jury. In addition, Blue Diamond moved for a judgment notwithstanding the verdict. It should have been sustained. It was not.
For the reasons set forth, we recommend that the judgment of the Perry Circuit Court be reversed, with directions to enter a judgment dismissing the action.
The opinion is approved by the Court, and the judgment is reversed, with directions that a judgment n. o. v. be entered in favor of appellants.
John B. Breckinridge, Atty. Gen., Martin Glazer, Asst. Atty. Gen., for appellant.
Frank E. Haddad, Jr., Daniel T. Taylor, III, Louisville, for appellee.
PALMORE, Judge.
On May 17, 1960, Strickland appeared with his counsel, withdrew his former plea of not guilty, and pleaded guilty to the indictment. He was sentenced to 5 years in the penitentiary and placed on probation. In December of 1960 his probation was revoked and he was remanded to prison. After a time he was released on parole but eventually was recommitted to the penitentiary following revocation of the parole.
Conceiving that his guilty plea and the judgment of conviction entered on May 17, 1960, were void because there had never
At the time the judgment of conviction was entered § 156 of the Code of Criminal Practice was still in force.2 It provided as follows:
“If the court shall be of opinion that there are reasonable grounds to believe that the defendant is insane, all proceedings in the trial shall be postponed until a jury be impaneled to inquire whether the defendant is of unsound mind, and if the jury find that he is of unsound mind, the court shall direct that he be kept in prison or conveyed by the sheriff to the nearest lunatic asylum, and there kept in custody by the officers thereof until he be restored, when he shall be returned to the sheriff on demand, to be reconveyed by him to the jail of the county.”
The words “until he be restored” in Cr.Code § 156 were never construed as requiring a restoration inquest, and there have been several instances in which this court has upheld the conviction of a person previously adjudged insane and never formally restored. See, for example, Davidson v. Commonwealth, 171 Ky. 488, 188 S.W. 631 (1916); Southers v. Commonwealth, 209 Ky. 70, 272 S.W. 26 (1925); Cannon v. Commonwealth, 243 Ky. 302, 47 S.W.2d 1075 (1932); Gulley v. Commonwealth, 284 Ky. 98, 143 S.W.2d 1059 (1940); Murrell v. Commonwealth, 291 Ky. 65, 163 S.W.2d 1 (1942); and Sharp v. Commonwealth, 308 Ky. 765, 215 S.W.2d 983 (1943).3
The terms “insane,” “unsound mind,” and “mental illness” are too loose to serve as a reasonable test of whether a person is properly fit to plead or defend himself in a criminal proceeding. For this purpose, whatever may be the technical classification of his mental state, legally or medically, the test is whether he has substantial capacity to comprehend the nature and consequences of the proceeding pending against him and to participate rationally in his defense. Cf. 14 Am.Jur. 802 (Criminal Law, § 45). It is not necessary that this determination be made by a jury.
Counsel for Strickland do not now contend that the adjudication of insanity was conclusive or that the trial court had no power to proceed with his case and accept a guilty plea without a restoration inquest. What their argument apparently amounts to is that having done so, a judge can change his mind at any time in the future and start over again by way of RCr 11.42. The inevitable chaos such a procedure would unloose cannot be permitted.
If the issue of a defendant‘s mental capacity to plead or to defend himself has not been submitted to and determined by the court on the basis of a fair hearing it should not be res judicata.4 Therefore, in the absence of such a hearing, upon a showing in a subsequent RCr 11.42 proceeding that at the time he entered his plea or was tried he did not have sufficient mental
In the recent case of Thomas v. Morrow, Ky., 361 S.W.2d 105 (1962), a habeas corpus proceeding, the facts were held to be conclusive of the defendant‘s incompetence to participate in the criminal proceedings leading to his conviction and imprisonment. We cannot say so in this case. It is our judgment that the trial court must conduct a hearing and make a finding of fact on the question of Strickland‘s mental capacity as of the time his guilty plea was entered.
As mentioned in Davidson v. Commonwealth, the rebuttable presumption existing in civil cases by reason of an insanity adjudication does not necessarily apply in criminal proceedings. From the standpoint of procedural effect—that is, whether a permissible inference, a rebuttable presumption, or a conclusive presumption (as in Thomas v. Morrow) has been established—the particular circumstances of the case should govern. In Thomas v. Morrow the prisoner, while awaiting trial in circuit court, contemporaneously was found incapable of standing trial in federal court. In the instant case the trial court in its discretion determined that Strickland was able to stand trial. In view of this action, based on whatever information was brought to the attention of the court at the time, it would be unreasonable now to draw an inference of continued incapacity as of that time without further evidence reasonably justifying such a conclusion. In short, upon remand of this proceeding to the trial court for purposes of a hearing and determination of the question of Strickland‘s mental capacity at the time his guilty plea was entered, the fact of his insanity adjudication on February 11, 1960, will not constitute evidence sufficient to support vacation of the conviction.
The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.
MONTGOMERY, J., dissenting.
MONTGOMERY, Judge (dissenting).
So far as the majority opinion indicates the need for a further hearing to determine the mental capacity to stand trial, I respectfully disagree. I am thoroughly in accord with the principles of habeas corpus as set forth in Owen v. Commonwealth, Ky., 280 S.W.2d 524, and feel that habeas corpus affords an adequate remedy which renders RCr 11.42 unnecessary.
In the present case, Strickland appeared with counsel, withdrew his plea of not guilty, and pleaded guilty. This was done after the medical authorities having him in custody had determined that he was able to stand trial and the court had been so advised. The effect of the majority opinion is to go back now for a determination of whether Strickland was in fact mentally able to stand trial.
This case is similar to Higbee v. Thomas, Ky., 376 S.W.2d 305, also 375 U.S. 13, 84 S.Ct. 79, 11 L.Ed.2d 41, wherein the question of adequacy of counsel was involved.
I am concerned with whether the majority opinion here and in the Higbee case will require the trial court in every instance to have a hearing to determine the mental capacity of the accused to stand trial and another hearing to determine the adequacy of counsel. This would be a serious problem when trial dockets are congested and would become a more aggravating problem when there is no apparent restraint or limitation on the number of times such matters may be raised under RCr 11.42. The lack of finality in criminal cases is destroyed by the apparent ability of an accused to have his case tried and heard on appeal at least twice. No other type of litigation has such favorable treatment. I am at a loss to understand what has become of two ancient and two
Maybe this dissent should be dismissed as an expression of old-fashioned thinking, but the light regard in which such ancient principles seem to be held is disturbing. The procedures apparently recognized in this case and in Higbee indicate an utter lack of understanding of the practicalities of the administration of justice in the field of criminal law.
My concern compels me to dissent.