*1 con- that no we hold these right. circumstances reserved county made between sale whs purchase tract of granting judge erred Wilson. The premises convey county to requiring absolute bid. payment concur. Judgment All the reversed. Justices January Argued January 17, 1962 Decided 22, February Rehearing 12, 1962. denied for Mozley, E. George Robert Edwards, Herbert 0. P. Dillard, plaintiffs in error. contra. E. Baker,
Walter THE STATE.
21439. ROSS v. February Argued 8, 1962. 13, November 1961 Decided error. Campbell, plaintiff for Jr., D. Rawls, II. G. C. Attorney- Eugene Solicitor-General, Cook, Maston O’Neal, Attorney-General, Rubye contra. General, Assistant Jackson, G. review, here, upon question The substantial Justice. Grice, find- verdict support sufficient to is whether a recommendation. ing murder with guilty the defendant Ross, defendant, Clyde September 1943, the Frederick 21, On Dougherty County for grand juiy indicted plea of April special A Leopold 9, Crine on murder 27-1502, provided by Code the trial, insanity 1943, jury on October resulted in a verdict of Mil- committing judgment was entered Feb- there until ledgeville Hospital. remained Dougherty returned County when ruary made no issue Upon April, 1961, trial. his trial ground upon deceased but defended having killed the toas jury homicide was committed. The .was court guilty found him with a recommendation and sentenced imprisonment. him life assignment toi of error here His general grounds the denial of his motion for new trial on only. *2 the preliminary of question A the state record relates to
as to restoration the the verdict sanity of defendant’s 1943 of the jury finding him insane of trial and the subsequent judgment Milledgeville committing him to State Hospital. restora- any This record does not reveal affirmatively law, tion sanity by procedures by to any provided of though restoration suggested by certain is docu- given appear. phase ments that this of the case We have care- ful consideration!, direction the clerk trial including of the court up upon any to send additional such bearing evidence question invitation for counsel briefs. question
This at the raised 1961 trial and is disavowed by incorporated this It mot upon counsel review. was grounds new trial, motion for only of which related the sufficiency of the to sustain evidence the verdict for guilty of any coxnpliance the crime event, committed in 1943. with Code person insanity 27-1504 or afflicted “No lunatic § tried, put upon offense, shall or during for trial, insanity tixne he is afflicted with .” lunacy such pretrial connection, matter for the presiding judge. of In this bill exceptions, approved of correct trial by true and judge, February 6, recites 1961, the defendant “was re- the Dougherty Counity leased back to pur- authorities for trial, suant to law.” entire negativing coxnpliance,
The record not presump- public tion State, including Superin- of this officer’s tendent Hospital and the judge, trial performed upon the duties incumbent them by law, being “discharged restored to after prescribed (Code by manner 27-1502; law” Richardson v. § 888), Hall, 199 Ga. 34 SE2d befox’e put he trial in 1961 tried this offense. See v. White 216 Grimes, (116 Ga. 561); (1). 335 SE2d 22A C.J.S. Law, Criminal 589 evidence this Therefore, the introduction judgment commitment verdict of the 1943 guilty the verdict of invalidate itself defendant did became The verdict and subsequently rendered. facts trial, the 1961 adduced entire evidence part by not rebutted be rebutted or they were based which Thus, case. of all other consideration the evidence whether remaining consideration question for our of murder guilty finding the the verdict authorized recommendation. with a back- evidence,
2. The has for its drawn picture, as Muskegon, Hospital ground hospital Hackley records Michigan. Those records in 1941 seizures, as epileptic a brain infection, suffered followed broken treatment of a during result head tongs applied change personality distinct neck. indication of There was this illness. after be- inquiry under here the homicide leading up events *3 he according statement, written to
gan, a Troops, he was pistol of which Michigan stole a from the State master regular army cap a and a set of bought then member, and that it appeared sergeant stripes Troops his uniform so use with to thought Tire be an defendant he would army uniform. to regular were like a soldier. get easier he dressed able to rides if Chicago and Michigan hitch-hiked to He left on March get ride he not a If could from there San Texas. to Antonio, night. night spend he and go to the USO would his he gun suitcase most of the he time stated carried Antonio, way left April- he San 7th his was on road. On Pensacola, east Mr. About 75 miles to Florida. Jacksonville, Al- some they a ride. were gave him When miles Crine bany, Mr. took home, Crine’s Georgia, car, get and some dis- stop out, walk gun Crine to and forced There, the defendant had the vic- into area. tance out a wooded the defendant Finding money give him wallet. tim him he gave “when I his wallet back to it back and handed away he step When started to from me. stepped away forward I realized shot him. I do gun me and I fired him. . .” many times I shot know how got The defendant then car related in the deceased’s he gasoline and drove a where about two to service station miles bought gasoline. Not having rationing coupons told attendant he nearby bring lived and would them her later. He through then Albany drove miles and few north of city discovered that he was not on the road to Jacksonville so around, said, turned I go back out where “to intending, had shot get gasoline rationing left and and [the deceased] tickets out of his bill place folder come where I back bought the gas give her I the tickets her, owed get have more gasoline also to Jacksonville with.”
After he had Albany, turned around and headed back toward “running 70,” about defendant met a Patrol Highway patrolmen car. The turned stopped around and him. They, with explanation satisfied the defendant’s why he, as to with Michigan! driver’s license, driving automobile an Georgia license plate, took Albany ques- him into for further tioning. later, There, killing a short Leopold confessed to Crine, the owner of the car, police led body, and made written statement giving the details related others. here, and
Upon the State’s evidence consisted of the above re- ferred written statement given defendant, after shortly the witnesses, viz., five the attend- homicide, ant service station where the bought gasoline after shortly murder, patrolmen of the State stopped who brought Albany, county police- man prepared took who statement, defendant’s written group was in the led to> body of the de- the 1943 ceased, Albany Chief of Police to whom the defendant confessed, general solicitor who also in that served ca- *4 in pacity 1943.
Relying primarily presumption on of sanity, the State of- fered expert testimony on that issue. The only given evidence by showing the State the defendant’s mental condition was: (1) bought that gasoline when he immediately after the mur- der “was (2) nervous and kinda like he was in hurry;” a that stopped highway patrol he “seemed ner- the wit- first time (3) that it talkative”; very vous and a man committed (a had seen a who had patrolman) ness patrol; highway by the just when followed up serious crime slow (a stat- although policeman), (4) county that another witness murder,” more cold-blooded “I know I know of a ing, don’t as sane, and the defendant was agreed assuming that meant good “had a that he didn’t know whether admitted plea the special (5) trial of mind mind”; or bad a psychiatrist Yarbrough, Thomas H. Dr. insanity Hospital, Dr. Milledgeville and superintendent State and later testified that County, Dougherty Physician County Keaton, while a doctor they insanity, evidence of found no testi- another from Americus and Albany, Michigan, one for the fied defendant. sanity,
Seeking presumption to overcome gave juror witnesses, four (Michigan) Hospital trial three physicians, by Hackley and and Hospital condi- relating and records tion. Rorer, juror trial of the
William on the two psychiatrists doctors and stated “Two testified psy- insane and one testified and doctor testified sane one the de- chiatrist one insane. .” He recalled that sane and trial they father mother were fendant’s change hospitaliza- the defendant’s after his habits tion for the broken neck training experience
Dr. physician Russell Thomas, in the health mental field medical witness at the defendant in who examined stated ex- Michigan illness and own records amination of him concluded defendant was on the homicide. date of distinguish
However, to whether defendant could be- tween committed, homicide was wrong date spells said, obviously “He when he this witness may one time he blanking something — n depends day- not. It on the time another time he may spells these not.” whether one of The witness *5 he epileptic stated that per- be an considered defendant to sonality that things memory do “they and will have no it . . right . if he didn’t remember he didn’t know wrong.” The that witness then said in the de- his wrong fendant “at times.” did agreed Dr. point that in the Thomas defendant’s written which would sort black- statement, indicate out, just the was brief gun firing, moment that statement except filled with details for that one moment. agreed accept also that one that re- has to' does things member those he he which said and which remembered were substantiated other proof. they
Asked if the defendant whether, stated various details appear in statement, his written he would that say answered, remembered them, Dr. Thomas “He must have.” Then Q. the following questions you occurred “But and answers: agree that accounting incidents, would giving details, which were proved be subsequently things true, were that did to remember?” A. you’d agree Q. “I think have to to that.” “He blackout place?” was in took A. “Not if went Q. back and it.” you say remembered “Wouldn’t preparation taking for yards act in the woods . . . [etc.], thing, order make it secretive would show that wrong?” it knew A. “Yes.”
Some questioning produced the witness’s that the de- fendant weakminded. Dr. Thomas was asked whether the condition, susceptible defendant, sug- would very be gestions happened, answered, events “I so think boy I don’t believe that could remember and build story. thing I have never seen I but don’t believe before, I could have done that. don’t think he mentality it memory.” thought leading The questions doctor were probably asked how numerous got agreed details into his statement but defendant’s word as what he remembered or did not remember would have accepted. patient’s He stated: “The the gospel word is with us.” witness stated that same defendant’s actions driv- around turning through then Albany
ing the dead man’s car knowing it the home go through it, starting back Patrol, Highway the State stopping and then deceased, indicative of it, was running rather than sanity. factor judgment, vital state involved since *6 going into actions, particularly these opinion, witness’s judgment. car, unsound Albany in dead man’s Mil- witness, with physician was another Allen, Dr. Edwin W. then. ledgeville Hospital first 1958 and saw the State hospital the defendant from and He records discussed the on that psy- Yarbrough, in which report read Dr. diagnosis post as the defendant’s condition chiatrist made a insanity fol- Allen (explained psychosis traumatic Dr. gave Milledgeville staff the other doctors lowing injury), an and psychosis; Bradford, opinions: post traumatic following Dr. Clodfelter, Bostick, psychotic; Dr. Dr. Dr. unclassified; Mitchell, unclassified; Dr. unclassified; Bradley, Cox, Dr. unclassified; unclassified. concensus, operations per- related records as to also witness Milledgeville at remove scar tis-
formed on placed been head tongs sue which had on his site and, when neck for brain later, he broken had spot. that the defendant’s tumor tumor same He stated growing, that still he will completely was removed was operations require continue have trouble and decrease life pressure causes on the brain tumor his op- limited. Allen expectancy Dr. testified while at and that the erated owned store belligerent, unpleasant records aggressive, show was not while there. Michigan Allen hos-
Dr. also discussed records pital lasting a convulsion which showed “about three minutes” are gave brain cells damaged lasting three convulsions minutes or over. opinion,
This based witness’s had studied records he and what he personally knew about the was that he defendant, “that homicide, onithe date of judgment, had no reason, things without convulsions, would would have would periods things he did other which not remember periods in that he did,” post which he traumatic psychosis epilepsy. acknowledged that take has patient’s things. word he remembers as to whether agreed possible Allen
Dr. a man have con- yet vulsions and the time he is wrong during not having asked, one. He “If a hitch hiker down riding pistol gets lonely and . . . road when he to a place ... orders the pistol stop takes man to out, car, gets out of car the pistol and holds man yards marches across fence and 400 the lonely for the purpose robbing woods him, you say could convulsion then?” I He answered, sir, “No could not.” He “he also said could have had a convulsion. I don’t know that he didn’t,” did and I don’t know that he person “a not necessarily sane not having a seizure. You can person have a psychotic epileptic basic can be who an too.” *7 sought distinguish
Dr. Allen between whether happened whether, regardless remembered what memory, of judgment. He stated, “Although might remember every minute something detail of and then he not still could right basic to know wrong.” He felt that the defendant not did know the difference between wrong that “he things did absolutely no behind reason them.” gave opinion his witness on the date the homi- of
cide the defendant totally was irresponsible, judg- that he had no ment and “I stated, feel that this man, no happens, matter what supervised must be ... I personally not feel that he is dangerous.”
Dr. J. F. the third Cantrell, physician, testified that he first saw defendant only recently opinion and based Michigan records from and his recent exami- nation of the He defendant. stated he did not think the de- fendant “sane, totally sane, the date of dismissal here [Michigan].” testified that He the defendant defi- signs nite of mental aberration from the date Michigan dis-
577 even, a according or he had charge, before; the records hospital convulsion minutes on lasting day his 20th three lasting five hospital day, minutes on his 24th and on day latter a “convulsive state” five remained hours minutes damage 45 could Dr. Cantrell’s this brain. dangerous was that the defendant Michigan time he left hospital the crime was com- until possible mitted. whether stated is not patient truth telling lapse. is when he tells memory of a defendant suf- convincing is study
A
of
However,
very
fered from
serious mental disorder.
mental
time
at the
defense
the accused
abnormality
was,
unless
irresponsible
under
offense, mentally
of
commission
recognized
That test is whether
the test
this State.
law
distinguish
right and
between
accused
“reason sufficient to
wrong
particular
in relation”
offense committed. Roberts
(28
State,
77
SE2d
197 Ga.
v.
State,
310;
v.
3 Ga.
Hubbard
insanity, which
exception
delusional
115). The
this is
justi-
excuse
is not
here.
Intermittent
involved
know-
incapable
fication for
unless
crime
Carter
the act
committed.
right from
time
ing
wrong
(58
mere
532).
weak-mind-
Nor
State,
App.
v.
254
SE
Ga.
Ga.
State,
Goosby v.
alone
defense to crime.
edness
(112
467).
SE
general
been
insanity having
made under
The defense of
plea
rests
under
defendant,
burden
guilty,
467),
(see
State,
presumption
Carter v.
56 Ga.
beyond
but not
preponderance
show
evidence,
responsible
doubt,
mentally
was not
reasonable
(195
alleged
SE
crime. Rozier v.
Thus, jury whether this defendant inquiry the for the distinguish right wrong sufficient re- reason between jury lation the committed. to this homicide at time was The judge having approved found that the trial did, overruling that finding, manifested motion for new as asserting contrary, here as- to the our function is to there evidence to authorize that certain if verdict. 578 did persuasive
The at times the defendant evidence is authorizing right wrong. there Yet time jury wrong did know at to find this homicide was committed. may the jury consider the actions determining sanity,
mental crime condition of before and after accused (Flanagan 619, State, v. State, 550; 103 Ga. 30 SE Wilson v. App. 274, Homicide, 9 Ga. C.J.S. 1128; SE 324), and declarations the defendant made time reasonably may proof offense close or thereto considered as his mental v. condition crime. Cochran (91 601). State, 212 Ga. SE2d homicide, Here, actions before and after the as related in statement his written were witnesses, as authorize jury they were those of to determine person. jury de- sane could have The also concluded that travels preparing by stealing pistol fendant’s actions for his hitch-hiking and buying army cap insignia an aid in facilities, leading to enable him to use USO his benefactor away the public a wooded mo- highway before area him, lesting obtaining gasoline promise bring mere on his rationing through coupons later, driving dead Albany in the man’s car nothing if and- stopping as happened, Highway running, were Patrol, rather than those sane and of a cunning man, not an one.
Furthermore, testimony to> defendant’s mental condi- tion by the witnesses who with or talked him on observed day highway service crime, attendant, station a State patrolman, county policeman, Albany Police, Chief of most, at the indicated, only that he was talkative. nervous and The jury was authorized to conclude that, under the circum- conduct. this normal stances, sought The defendant establish his insanity by to' defense of expert testimony. rule as of such inconclusiveness “Opinion testimony testimony is, is clear. character however, by no means conclusive the issue in- of sanity sanity, dependent peculiarly but is or evidence facts supporting rendered. opinions Undeniably, *9 substantial qualified carry witnesses the issue of precise yet the province the the weight, jury it is to determine of weight 483, Homicide, it.” given 26 Am. Jur. § in-
“They are not issue of [the'jury] to decide the bound sanity in of conformity declarations of number as witnesses which produce not conviction in their minds against the pre- or witnesses, of a lesser number of are sumption, minds, or other evidence their satisfying and thus required although number of wit- to find accused that expert nesses testified or other was insane and no . .” has that he was same. 41 C.J.S. 47, witness testified Homicide, 324. opin- here testified in his medical witnesses
Each at the time the homicide. How- ion defendant was insane ever, defendant knew of them was except spell seizure. All right from wrong was or agreed would not remember what had dome while that he later factor of recollection Thus, such condition. killed deceased events killing utmost following preceding and immediately testimony. the medical significance evaluating testimony of Dr. Thomas Ini this connection the wrong depended “on the right from whether knew not” and day> spells these on him or time of one of —whether a blackout.” re- wasn’t “Doing things he could remember question he stated de- response “If [various you written in the they appear tails as defendant’s statement], you,” that he remembered wouldn’t Dr. Thomas say would that, replied, question “He must have.” Then to the “He was leading up homi- blackout when various events to the [the place,” took cide, written as related in statement] answered, it.” Dr. “Not if went back remembered Thomas agreed further the secretive manner in which Dr. Thomas taking crime i.e., the deceased committed, to kill show that him, woods would knew wrong. There evidence that the in the numerous details defend- sug- leading questions ant’s written statement resulted from Dr. Thomas. On gestions events, intimated as to subject this contrary, policeman who Stokes, county was not Mr. case. come typed asked, “Where did details statement, Ross.” replied, statement?” He “From Mr. up make *10 that, That effect some was to the of medical the blackouts, the temporary aside from all seizures or wrong, does psychotic right not know times was and did n|ot se- jury call different The had the to for a conclusion. lect it the the be in with testimony which considered to accord mental condition. true Those upon by including cases the Hand relied spike (45 State, dissimilar v. Ga. SE2d involved 662), 115 undisputed where situations the evidence the accused insane offense. he committed the against The verdict the defendant the evi- by was authorized Accordingly, dence. denial the motion for on the of new trial general grounds was not error.
Judgment the concur, except J., All Justices Head, P. affirmed. and Quillian, J., who dissent. dissenting. Presiding Justice, order overcome to
Head, commandment person of our law shall be tried upon or put trial any during offense is insane 27-1504), the conclusiveness of a valid en- {Code § jury provided tered by a verdict of in manner law ad- judicating 1943, the defendant insane in October, majority upon presumption judge that the performed relies trial incumbent duties by law, and “that the defendant sanity being 'discharged was restored to after pre- in the manner law’ by presumption scribed that the [Code § 27-1502].” judge trial met duty presumption did is that a men- proved presumed tal state is once to exist to Code continue. The statement that “discharged 38-118. in the manner § prescribed law” first by met by instance the statement opinion that: “This record affirmatively does not reveal restoration sanity by any procedures to provided of by .” law.
By approved an act of General Assembly March 49-610.9) (Ga. Supp. Ann. Code pp. 586-587; L. who it provided part person the event a “In follows: released Hospital has been committed to superintendent, order of being sane, therefrom as under by superintendent, copy of order shall be such transmitted ordinary (5) within days to order, of the date of such five thirty of from which county person committed, such (30) or- days copy date receipt restored person legally shall be deemed to been dinary, such an sanity, issue duty ordinary shall to be along order that effect and enter such order his minutes with a copy superintendent. the order substi- the 1956 act can prior court
Decisions enacted commandment of law as positive tuted for the State Upon failure of Assembly the General pursuant that the defendant been restored show act, could there be no valid the 1956 command of commis- charging *11 an indictment him with the prior declaring of the court sion a crime insane. presump-
Reference made in 2 of the to a division alleged crime. sanity tion the time commission of the of the person period insane put during No can be trial whether the defendant sane insanity, brought not alleged can properly offense be adjudged manner issue insane in the where provided adjudicated thereafter by law, and was pursuant law. sanity commandment to the restored to judicial adjudication res- statute for a providing complied with, my opinion toration been it is purported wholly and com- pletely should been void, so declared court. Quillian
I am concurs say authorized to that Mr. Justice this dissent.