*1
them all
necessary
matters of law which are
giving
their information in
their verdict.”
7. Hazlett
supra,
v. 229 Ind.
Burris v. 2d
E.
N.
It was for the to know in this case they appellant guilty could find the of the lesser charge offenses manslaughter. included in the appellant jury was entitled to have told they guilty could find the of a charge battery of assault and commit with intent to felony, battery, simple assault and or a in the assault event support the evidence was such toas such verdict higher and not sufficient to sustain an offense of a grade. Since there will abe new trial case the this points appeal moot, other raised become give we need them no further consideration. judgment of the trial court is reversed with grant
instructions to a new trial. Reported in 139 N. E. Note. —
Marx v. State Indiana. 29,360. [No. Filed March 1957.] *2 Agneiu, Indianapolis, appellant. William for John Steers, Attorney General, Boling Edtvin K. Owen S. General, Attorneys O’Mahoney, Deputy Robert M. appellee. for appellant of sec- J. The was convicted
Arterburn, degree burglary, Re- to the Indiana ond and sentenced years formatory period (2) of not than two for less (5) years. than five nor more appellant points two main raises considera appeal. tion on this is that he The first contention separate entitled a trial from his co-defendant question for the reason that there was some sanity of the defendant. The mere fact alone that there be an issue of raised petitioning necessarily defendant would not com pel separate showing suggestion trial. There is no or any injury prejudice which would grant with result the trial his co-defendant. The ing separate of a motion for a where defend jointly judi are ants indicted rests within sound only cial discretion of the trial court. It is where there plain arbitrary is a abuse such discretion that separation a denial of will be reversed. point any
fails to out abuse of such discretion in this grounds case trial court. We therefore find no *3 declaring any part for abuse of the discretion on of the denying petition. trial court in the Acts ch. §1, p. 286, being Replacement; Burns’ 1956 §9-1804 Neal v. E.N. E.N. 2d 950. appellant
The second contention of the that the appellant alleged at the of the of the time commission crime, trial, and at the time of the was under commit- Hospital, toment the Central under order issued by Judge Lloyd Claycombe Court, of the Marion Circuit insanity inquest; aas result of an that with such com- outstanding (Criminal the mitment trial court Court County, 1) of Marion Division no No. had charged. appellant the for a crime to attorney appellant the
The record shows suggested prior trial, regard- to the court to the facts ing appellant. possibility the the of the This presented by the of a letter was done submission attorney appellant’s from Dr. the court addressed Williams, Superintendent L.C. of the Central State Hospital. stated, among things, letter This other appellant the hospital had been committed to that 4, 1953, the Marion Circuit on Court November showing improvement, after the released from he was hospital custody in the mother. It was while re- his alleged hospital leased from the crime was com- showing mitted. There no was court record introduced any sanity. formal restoration (Criminal County
The trial court Court of Marion 1) thereupon, pursuant Division No. to Acts ch. 238, §2, p. being Replace- Burns’ 1956 §9-1706a ment, appointed physicians two to examine the defend- ant, report upon sanity. statute, part, This says: “If the court shall find that the defendant has comprehension nature the the sufficient understand against of the criminal action him and proceedings defense, the thereon and to make his delayed shall continued on
ground alleged insanity of the defendant.” preliminary hearing following testimony At the physicians appointed, so the court found comprehension the defendant had sufficient to under- stand the nature of the criminal action him and finding proceedings, and to make This his defense. amply supported testimony medical experts. Thereafter, was tried on charge, pending guilty by criminal the court. and found special to be observed that the made no plea charged, crime as must be done *4 169, §198, p. to raise such issue under Acts ch. being §9-1132, 298, §1, p. and Acts ch. being §9-1701, Replacement, Burns’ 1956 and no evi- was introduced on such an issue at the trial dence pointed ques- proper. likewise be out that no should sufficiency appeal on this to tion is raised as the specification There is no in the motion for a evidence. point, point the that nor on the that ver- new on urged contrary only point relative dict was to law. The jurisdiction question the the lack to try the trial to the issue was raised court case. This ground the a to the trial court motion dismiss on jurisdiction by of the fact that defend- had no reason person, as an ant ordered committed insane “was 1953”; 4th, on November Central entertaining charge the trial court criminal against permitting “a collateral upon the order commitment of the attack” Circuit Court. points that there out is no evidence in state showing “appellant
record was ordered committed technically true; person.” be an insane This however, prefer place to our more we decision grounds. substantial power concerned here with the of a court
We are charged to a defendant assume with crime, a at time was under a commitment to who insanity hearing an a mental institution as result of resulting inquest than from a or other criminal jurisdictional question appears prosecution. This be state; however, impression in there are one of first guiding principles should not over- which be certain looked. being inquest a commitment without
An necessity involved, may used determine showing guardian on the appointment ability capacity subjected person does not have manage personal affairs business. proceedings for the the normal com- purpose of hospital person to a mental insane mitment society protection treatment, for his *5 460 proceedings
his violence. The are, part, for the most parte ex nature, may in be voluntary based a petition in some 1929, 89, §1, 288, instances. p. Acts ch. being seq., et Replacement. §22-1201 1950 Burns’ A may defendant also be ordered committed to the Dr. Beatty Norman M. Memorial under §9-1706a supra, preliminary hearing at prior a to a criminal trial when it is found the mentally defendant is not fit to However, stand trial at the time. case, even in such a the trial court jurisdiction, does not lose but under the statute any reconsider the matter time. not, however,
We are here concerned with a com mitment to the Dr. Beatty Norman M. Memorial Hos
pital. We do not purpose believe it is the or intent of the law that a commitment to a mental institution any shall be a defense to prosecution, deprives a court of criminal one so committed for a criminal offense under the circumstances here. a rule Such would create an immunity prosecution long as so such a com outstanding. mitment areWe all aware that there types insanity are various and mental disorders. Some are curable and some are not. There are also degrees various such types illness. Some of these degrees legal insanity do not meet the test of suf ficiently to to a defense law violation. In other words, legal insanity medical is not the same as prosecution. every as a bar to criminal Not mental aberration or disorder will excuse the commission of responsibility There is criminal crime. where there mentality fully comprehend sufficient the nature consequences coupled of one’s acts with a will controlling capable acts, regardless power of other insanity inquest mental abnormal characteristics. An adjudicate does not such issue. Kallas v. State 103, (Cert. 83 (1949), 227 Ind. N. E. 2d 769 Denied
461 1098, 744); 336 U. S. 93 L. Ed. 69 S. Ct. Foster v. 358; State Swain 921; 18 Ind. N. E. 2d Cert. Denied 306 U. 83 L. Ed. S. S. Ct.
Notre Dame L. J. Ind. L. J.
In Goodwin v. The finding insanity inquest court held the at an was not prosecu- conclusive on the state a criminal *6 tion, may and the state introduce evidence to rebut finding. possible person might
There are in situations which a subject proper abe for commitment and treatment in institution, a yet mental have sufficient capacity will, mental to make a transact busi ness, witness, legally be a responsible and be for crime, depending upon degree commission aof Emry nature of the mental disorder. v. Beaver 137 N. E. Breedlove et al Bundy Ind. Hicks v. E.N. 641.
Moreover, insanity a commitment to a mental outstanding institution where there has been improvement complete recovery. delay or A or adjudicating a failure have decree entered a sanity, prevent restoration not should a court assuming jurisdiction from of a case which such a person charged with a crime. Where a crime is charged proper settling question manner for a existing provided mental condition is that under Burns’ §9-1706a, supra, legal responsibility and where that of involved, by pleading specially for criminal acts is in sanity charged provided by a defense to the crime as (Burns’ §9-1701, supra). §9-1132 statute given jurisdiction courts have been to determine these questions in criminal cases. Supreme Court Ohio has held that one sub-
ject asylum confinement in an insane was immune prosecution for his crimes. State ex rel. v. Owen (1937), 133 Ohio St. 114 A. L. R.
It opinion is our that the trial court had charged, although for the crime there alleged atwas the time of the commission of the crime, outstanding and at the time of the trial a com- insanity mitment for Hospital. to Central State Appellant plea did not enter a aas de- following report fense physicians appointed appeal appellant court. represented by On this counsel different from that which he retained at the question trial. suggested by No has been here raised any incompetency such counsel toas of trial counsel in failing to make a defense of at the trial. We right assumption. have no to make such an Suffice it to say, many making that there are factors to consider in plea insanity, opens one of it these is often quite widely the door to all kinds of evidence as to the experience not for and activities of the defendant. judgment pass appel- us to or the *7 lant’s as to the wisdom of the course he trial counsel takes to These are matters for their defend himself. determination, not ours. judgment is affirmed. Landis, JJ., J., Achor, concur. concurs
Bobbitt C. Emmert, J., opinion. opinion. with with dissents Opinion
Concurring majority opinion, in the J. As stated C. Achor, concur, burglary. in I was convicted of which He had been committed Central State §22-1207, Replace- under Burns’ 1950 for the Insane had, opinion in the At the time of the offense ment. sufficiently re recovered to be superintendent, furlough. in an the trial this case Prior to leased on Replace §9-1706a, inquiry had under Burns’ appel ment, it was determined of which as a result comprehension to understand sufficient lant had Nevertheless, proceedings and make his defense. discharge, presumption re complete of a absence psychosis he was committed for which mained that Quear rel. Madison Cir ex to exist. State continued 503, 506, E. (1951), 229 99 N. cuit Court that, presented, it was under the facts asserted plea special duty appellant’s to enter a counsel §9-1701, Replacement. under Burns’ grounded it upon the rule that This assertion is Having duty counsel, such de- “. . . undertaken every the law fense, present defense that ... person be de- permits, that no to the end land by process liberty, of law.” prived life or but due also: of Professional Ethics. See Canons Canon Ethics. of Professional Canons Canon every However, rule —like it me that occurs to rule does applied reason. The with other rule —must be permitted attorney defense require that assert a not an judgment, operate to the would, in his law which of his client. detriment appellant’s attor- presented indicate
The facts presumption ney may that the have concluded when maintained could client remained insane Furthermore, light he was subjected of fact. client to if he caused his the fact that confronted gate thereby open insanity he would plead client. exploration the life of his into unlimited almost strongly might exposed militate thus The facts the accused. cannot, under
Therefore, me that we it occurs to say matter of law that as a presented, facts *8 right was not. competent afforded his constitutional §13, Rights, counsel under Article 1 of our Bill of process he was due of denied law under the 14th to the Amendment Constitution of the United States. Opinion
Dissenting holding majority I concur in the Emmert, of J. opinion County that the Criminal Court Marion had appellant, there and that was no insanity plead- isue of criminal to be tried under ings.
But it is more than there obvious should have been special plea appellant’s. filed counsel §9-1701, Replacement, under Burns’ 1956 and for this representation he reason was denied counsel under Rights, process Section Bill our due as well as under Fourteenth Amendment.
(cid:127) .
§9-1706a,
Replacement,
The issue under
Burns’ -1956
goes
only
capacity
accused
know and
against
comprehend the nature of the criminal action
and to
him
make his defense thereto.
When
appellant
issue,
court found
on this
he did
was of sound mind or sane
the time
at
find
charged
committed,
the offense
is
which
issue
presented by
special plea
§9-1701,
under
Replacement.
Burns’
appears
record that
had been
Hospital.
committed to
Central
Before
such
commitment,
requires a
the law
court
find
22-1207,
adjudge
person
insane
fact. Section
Replacement
69, §7,' p.
Burns’
ch.
[Acts
13, §1, p. 19; 1933,
§1, p.
ch.
ch.
1166].
insanity adjudicated
psy-
a definite
must
involve
.22-1210, Burns’ 1950 Replacement.
chosis. Section
presumption
remained
State ex
insane.
rel.
*9
Quear
(1951),
v. Madison
503,
Circuit Court
229 Ind.
506,
nothing
Admittedly, appellant punished could still be for his criminal acts if at the capacity time he had mental comprehend know and consequences nature and of distinguish right his act and could wrong, power had will impulse to control sufficient his to com Stevens v. State charged. themit act (1869), 31 Ind. v. State Goodwin 485; Bradley (1869), 492; 550; Plake v. State (1884), State 96 (1890), 121 Ind. v. State 273; Morgan Ind. 23 N. E. 190 Ind. 130 E. N. Kallas v. Ind. Flowers v. special N. E. 185. But plea without a of presented defense could not be tried.
Appellant’s duty present counsel was bound to every proper defense the law of land authorized. right lawyer “It to undertake the person defense crime, regardless of accused of personal opinion guilt
his otherwise innocent accused; as to the persons, only suspi- victims circumstances, might cious proper denied be de- Having defense, lawyer fense. undertaken such bound, by is sent all means, pre- fair and honorable every permits, defense that the law of the land person may deprived the end that no life liberty, by process but due of law.” Canon Canons of Professional Ethics. judicial “In forum the client is entitled to any every remedy the benefit of and defense land, is authorized law of and he lawyer may expect every remedy to assert such or defense.” Canon Ethics. Canons of Professional apparent was so The defense failure inadequate representation it amounted to assert- J., p. 234, seq. counsel. Ind. L. et and authorities there cited.
Appellant’s trial representing counsel knew adjudged accused who had been insane with a psychosis, definite presumed and that the law still him Although insane. possible it is could be criminally responsible held charged, for the act inescapable any conclusion is lawyer who failed only gave to make perfunctory such a defense or casual representation, which process is a denial of due under Amendment, the Fourteenth well as denial of the right Rights. to counsel under our Bill of §13 Powell *10 (1932), 45, v. Alabama 55, 287 U. 53 S. S. Ct. 77 L. Ed. v. State 158, 527; 84 L.A. R. Abraham (1950), 228 Ind. Rhodes v. State 179, 358; 91 (1927), N. E. 2d 199 Ind. Castro v. State 183, 389; 156 (1925), N. E. 196 Ind. Wilson v. State 385, 321; (1943), 147 N. E. 222 Ind. v. State 63, 848; Bradley (1949), 51 N. E. 2d Ind. 227 Sanchez v. 131, 580; 84 (1927), N. E. 2d 199 State ex rel. White v. 1; Hilgemann Ind. 157 N. E. (1941), County 218 Ind. Knox (1940), Council v. ex rel. McCormick Ind. 217 Ind, J., 29 130 A. L. R. N. E. L. seq. p. 234, et and authorities there cited. Appellant’s appeal represent counsel on did not him appellant’s in the trial court. The fact that brief fails process representation to contend was denied due and by not to counsel should blind us what this record dis- Many closes without contradiction. times this court may properly it notice the and the has held record law though by properly presented applied not to be even counsel. obliged are not to search errors “While we by manifest the record as the not made brings us, by it are not so restricted to we required pleading are to hold a rule that we suf- clearly insufficient, to it is and when
ficient when
precedent
so
do would create a
well
to
calculated
profession
mislead
and lend confusion to well
principles
pleading
practice.” Big
settled
Creek
et al.
Stone Co.
v.
et al.
Seward
205, 209,
N. E.
E. 5.
N.
compelled
study
excep
“We were
to
bill
tions, and, having
so,
liberty
done
we were not at
disregard
eyes
to
perceived
what our
as
in their true relation
facts
to each other. Where
necessary,
resort
record is
will be
case
by
record,
determined
court will not
and in
a case
such
regard
governed by
itself as
the con
ceptions of counsel on either side as to the nature
controlling
Cleveland,
facts.”
etc.
R.
v. Co.
328, 363, 364,
Moore
170 Ind.
States,
. .
I would reverse Reported E. 2d 126. N. Note. — Indiana.
Mack January Rehearing 29,399. Filed [No. denied March 1957.]