174 Ky. 789 | Ky. Ct. App. | 1917
Opinion op the Court by
Dismissing the appeal.
“Comes the defendant, by counsel, and moves the court that a lunacy inquest be held so that defendant may be returned to the Eastern Kentucky Insane Asylum, as he had never been discharged and is now hopelessly insane and in a dying condition.”
On the 27th day of January, 1917, the court overruled the above motion as shown by the following order:
“This action having been submitted on the motion for a lunacy inquest for the defendant, so that defendant may be returned to the Eastern Kentucky Insane Asylum, and the court being sufficiently .advised, it is ordered and adjudged the said motion be overruled, to which ruling of the court the defendant objects and excepts. The defendant prays an appeal to the Court of Appeals, which is granted by the court.”
The Commonwealth, by the Attorney General, has entered in this court a motion to dismiss the appeal prosecuted by Davidson from that order, and the question now to be determined is, whether the motion should be sustained. It appears from the record before us that in April, 1915, an indictment was returned against the appellant by the grand jury of Fayette county, charging him with the crime of rape, committed upon the body of an infant female under twelve years of age; and also of having been convicted of a similar offense in the Fayette circuit court at its April term, 1898. After his arrest under the indictment, the appellant, through his counsel, applied to the Fayette circuit court for an inquest by a jury to determine whether he was a person of unsound mind, but the inquest was refused. The motion was made and overruled July 17,1915. But on September 27,1915, upon motion of the Commonwealth’s attorney, such inquest was ordered and held, at which appellant was, by verdict of the jury, found to be of unsound mind, and by order of the court committed' to the Eastern Kentucky Lunatic Asylum, where he was confined about seven months, and then released by the authorities of that institution. Following which discharge, he was tried under the indictment and pleaded the previous inquest and verdict of the jury, finding him to be of unsound mind, as a bar to his prosecution under the indictment. The plea,' however, was overruled by the court, whereupon he moved that another inquest be-held to determine whether he had recovered his soundness of mind, which motion was
_ The trial resulted in his conviction, his punishment being fixed by the verdict of the jury at confinement in the penitentiary not less than ten years nor more than ten years and a day. Prom the judgment entered on that verdict he prosecuted an appeal to this court, which affirmed the judgment of the circuit court. The opinion, of date October 17, 1916, is reported in 171 Ky. 488. On November 14, 1916, appellant filed in this court a petition for a rehearing, which, on December 5, 1916, was overruled. The following expressions from the opinion will show the conclusion reached' by us with respect to appellant’s defense of insanity:
“Upon the question of appellant’s insanity at the time of and after the commission of the act a number of witnesses were introduced, who testified that, in their judgment, he was insane. Evidence of insanity of several of defendant’s relatives was introduced, and two physicians testified that, from examinations made of him while he was in jail before the trial for lunacy in September, 1915, in their judgment, he was at that time insane, and from recent’examinations he was still insane at the time of the trial, and one of these physicians stated, in his judgment, appellant had been at least partially irresponsible for a number of years; but, upon the other hand, it was testified, by the assistant physician at the asylum where appellant was confined, that from his observations of the appellant, he was not at any time insane. There was also evidence of other witnesses that up until the commission of this offense the appellant worked at his trade as a carpenter and showed no indications of criminal irresponsibility; that when ho was caught in the attempt by the mother of the girl upon whom the attempt was made, he fled and successfully evaded capture by the officers who had a warrant for him for some months. While the preponderance of the testimony in numerical strength is to the effect that appellant was at times insane and irresponsible, there was ample evidence before the jury to sustain its verdict that the appellant at the*793 time of the commission of the act and at the time of the trial was not criminally irresponsible.”
It will be observed that appellant’s application for the inquest of January 25, 1917, was made after the overruling in the Appellate Court of his petition for rehearing, and following the filing in the circuit court of its mandate.
As the condition of appellant’s mind, bearing upon the question of his criminal responsibility for the act charged in the indictment was submitted under proper instructions to the jury on his trial and then determined by their verdict, and the judgment entered thereon was affirmed by this court, that verdict and judgment must be regárded as conclusive of his sanity at the time of the commission of the crime; hence, we assume that the motion for the inquest of lunacy last made by him was to prevent the execution of the judgment requiring his confinement in the penitentiary in pursuance of the sentence of the court.
The questions presented by the motion of the Assistant Attorney General are: (1) "Was the appellant, as a matter of right, entitled to the inquest last applied for? (2) Is the order refusing the inquest such a final order or judgment as may be appealed from?
As to the first of these questions, we must say that our examination of the Criminal Code and statutes has enabled us to discover no provision that seems to authorize the inquest last applied for in the court below by appellant. In» fact, there seems to be no provision authorizing an inquest for lunacy upon the application of the lunatic himself. Section 2162, Kentucky Statutes, provides:
“If any person be of unsound mind, it shall be the duty of the circuit or county court of the county in which he resides, upon application of the attorney for the Commonwealth, or, if he be absent, of the county attorney, to cause an inquest by a jury to be held in open court to inquire into the fact. The court shall appoint some member of the bar to represent and protect the interests and rights of the person alleged to be of unsound mind, and it shall also be the special duty of the attorney for the Commonwealth, or for the county, to prevent the finding of any person as an idiot or lunatic who, in his opinion, is not such; or the finding of any person an idiot who is a lunatic.”
It is true that the Commonwealth’s or county attorney is expected to, and usually does, act upon an affidavit
Section 287, Criminal Code, gives the defendant yet another opportunity to 'demand a lunacy inquest, which opportunity presents itself when he is called upon, after trial, to show cause why judgment should not be entered or sentence pronounced against him in conformity to the verdict. That section provides:
“He may show for cause against the judgment any sufficient ground for a new trial or for arrest of judgment; he may also show that he is insane. If the court be of opinion that there is reasonable ground for believing he is insane, the question of his insanity shall be determined by a jury of twelve qualified jurors to be summoned and empaneled as directed by the court. If the' jury do not find him insane judgment shall be pronounced.*795 If they find him insane, he must be kept m confinement either in the county jail or lunatic asylum until, in the opinion of the court, he becomes sane, when judgment shall be pronounced.”
In Laughlin v. Commonwealth, 18 R. 1640, we held that this section applies to the question of insanity of the accused at the time the judgment is pronounced and not when the offense was committed.
We think it manifest that the several sections of the Criminal Code and Kentucky Statutes referred to have no application to insanity arising after the judgment of conviction has been pronounced: Therefore, the granting of the inquest last demanded by the appellant was not authorized by any of them. Other statutory authority for such inquest, applying alone to cases in which the infliction of capital punishment has been adjudged, and where the insanity arises after the pronouncement of judgment, is conferred by section 1137, subsection 8, Kentucky Statutes, and section 296, Criminal Code, the first providing: .
“If the condemned under sentence of death be insane or pregnant with child on the day designated for the execution, said execution shall be suspended until said condemned be restored to his or her right mind or until she be delivered of child, and then said execution shall take place under the warrant of the Governor and at the time herein designated by him unless stayed by due process of law.”
The provisions of the section of the code, supra, are as follows:
“If the sheriff (the officer charged with the execution of the judgment) be satisfied that there are reasonable grounds for believing that the defendant is insane or'pregnant, he may summon a jury of twelve persons from the jury list, drawn by the clerk, who shall be sworn by the sheriff well and truly to. inquire into the insanity or pregnancy of the defendant, arid a true inquisition return; they shall examine the defendant and hear any evidence that may be presented; and by a written inquisition, signed -by each of them, find as to the insanity or pregnancy. Unless the inquisition find the defendant insane or pregnant, the sheriff shall not suspend the execution; but if the inquisition find the defendant insane or pregnant, he -shall.suspend the execution and immediately transmit the inquisition to the Governor. ’ ’
It is patent that neither of these sections can have any application here.
“Under the statutes of this state, execution of a death sentence is based on a warrant issued by the governor of the state after considering a copy of the whole record of the proceedings. The court which imposed the sentence has no power to supervise, control or suspend its execution. When such sentence has been affirmed by the Supreme Court, the duties of the judge and clerk of the trial court are merely ministerial. The duty of the judge in such case is to order the decree of this court to be filed and executed, and the duty of the clerk is to forward a copy of the record to the governor of the state. The statutes do not provide any mode for determining the question of the sanity vel non of a person sentenced to death.
“Act No. 105, p. 153, of 1896, provides for the interdiction of convicts confined in the penitentiary, on the petition of the warden and the clerk of the board of control.
“In such cases, if the judge be satisfied that the convict has become insane since his imprisonment, he orders the removal of the-convict from the penitentiary to the asylum for the insane, to be there detained and treated until he shall recover his sanity. It is obvious that to permit convicts to arrest the execution of sentences imposed on them by demanding as a matter of legal right, the appointment of medical experts to examine into their mental condition, would he tantamount to granting them the privilege of thwarting the administration of criminal justice for an indefinite time. The act of 1896 does not grant any right to convicts to initiate such proceedings, but the matter is. left to the discretion of the warden of the penitentiary. Reasoning from analogy, a similar initiative should be left to the custodian of. convicts sentenced to death. If persons under sentence of death appeal to the courts or to the executive department for a suspension of sentence on the ground of alleged insanity, it is discretionary with the court or the executive to take action in the premises. It has been held in other states that in such cases the question is one not of legal*798 right, but of humanity, and that, the ruling of the court is not reviewable by appeal or writ of error.
“In the case of relator, his counsel presented to the court a petition, unaccompanied by affidavit or other evidence, tending to show present insanity. The respondent judge refused to appoint a commission de lunático on the mere suggestion of counsel for relator. If such a ruling be reviewable by this court, then there is nothing to prevent other similar applications and other appeals by relator, resulting in the indefinite postponement of the execution of the sentence of death pronounced against him.
“Our appellate jurisdiction in criminal cases is confined to final judgments, and, being of opinion that we have no jurisdiction to review on appeal the action of the respondent judge in the premises, this application for a mandamus is denied.”
The soundness of the reasoning employed by the Louisiana Supreme Court in arriving at the 'conclusion expressed in the opinion, supra, demonstrates its correctness, and makes the rule announced in that case equally applicable to the instant case. Conceding, therefore, that, though without statutory authority to grant the lunacy inquest last moved for by the appellant, the Fayette circuit court nevertheless had authority to allow the inquest, not because appellant had a legal right thereto, but as a matter of humanity, its refusal to grant the inquest, even if reviewable on appeal, was not unauthorized, as .the motion was unaccompanied by affidavit or other evidence furnished by the appellant, or any one for him, tending to show that he was, at the time, insane. At most, as the inquest was not required by statutory authority, it was discretionary with the court, to grant or overrule the motion; and, in the absence of any evidence showing a necessity for such an inquiry into appellant’s condition of mind, it cannot be said that the action of the court in refusing, it was an abuse of discretion. As, in substance, well said in the opinion, supra, it is obvious that to permit convicts to arrest the execution of sentence imposed on them by demanding, as a matter of legal right, an inquiry into their mental condition, would be tantamount to granting them the privilege of thwarting the administration of criminal justice for an indefinite time. In other words, all the convict would have to do would be to continue to move for an inquest.
As the Fayette circuit court was without statutory authority to grant the inquest demanded by appellant
For the reasons indicated, motion of the Attorney General to dismiss the appeal is sustained and the appeal dismissed. Whole court sitting.