State v. Bethune
71 S.E. 29
S.C.
1911
Check Treatment

The opinion of the Court was delivered by

Mr. Justice Gary.

The following statement is set out in the record:

“The defendant was tried for the murder of C. B. Mims before Gage Judge, Clarendon county, June, 1909. Defendant was convicted and from the judgment thereon appealed, which judgment was affirmed on appeal. Upon petition and a showing in proper form, setting forth that since conviction, the defendant had become insane, the Supreme Court stayed the remittitur. Thereafter, by order of the Court, the stay of the remittitur was revoked, and defendant allowed to plead, when called upon to say, why a new day should not be assigned for execution, that he was then insane. On June 8th defendant was called for resentence, and by his attorney, Mr. A. A. Manning, plead that he was insane. The indictment was not explained to the defendant, and he was not asked if he understood the nature of the same, but was put to the bar and the indictment read. The question as formulated by his Honor, Judge Memminger, being submitted to the jury, they found against him, and thereupon he was resentenced. From the judgment thereon, defendant served notice of appeal in due time.”

The exceptions will be incorporated in the report of the case. We proceed to consider them.

1 First Exception: After his Honor, the presiding Judge, ruled that the issue -raised by the defendant’s plea, that he was then insane, should be determined by the jury, it was not incumbent on him to assume that it was necessary to explain the indictment, or to ascertain whether the defendant understood the nature of the offense of which he had been convicted.. All questions as *408 to the mental capacity of the defendant were for the consideration of the jury.

Second Exception: When the case was called, for the purpose of resentencing the defendant, his attorney, without objection, interposed the plea of insanity. As the question presented by this exception was not raised on circuit, it cannot be considered by this Court.

2 Third, Fourth, Fifth, Sixth, Seventh and Sixteenth Exceptions: “At common law a suggestion of insanity, made after verdict and sentence, did not give rise to an absolute right, on the part of a convict, to have such issue tried before the Court and a jury, but addressed itself to the discretion of the Judge. So, if, after a regular conviction and sentence, a suggestion of then existing insanity is made, it is not necessary, in order to constitute due process of law, under the constitutional guaranty, that the question so presented shall be tried by a jury. And a defendant who alleges his insanity, at the time of his arraignment, is not entitled, as a matter of legal right, to have a separate, independent and preliminary trial of that question, by a jury specially empanelled for that purpose. If there is no apparent reason to suppose him insane, but, on the contrary, he appears to be quite capable of pleading to the indictment, there is no necessity for a preliminary trial, because every right to set up insanity, either when the offense was committed, or at the time of the trial, still remains and can be thoroughly tried by the jury, which is to try the indictment.” 16 Enc. of Law 633.

“Where, when a person charged with crime is arraigned, or after he has been convicted, but before judgment and sentence, it is suggested, or appears to the Court, that he may be insane, the question of his sanity may be inquired into and determined by the Judge himself, or by aid of a jury summoned and empanelled for the purpose; and, so. in the case of insanity, after judgment and sentence, and before execution thereof.” 33 Enc. 1315.

*409 “The method of determining the preliminary question of insanity, where not the subject of statutory regulation, is largely within the discretion of the Court, which may, itself, enter upon the inquiry, or adopt some other mode, without the aid of a jury. The usual and safest course is to have the matter settled by a jury empanelled for the purpose.” 10 Enc. of Pl. and Pr. 1220-1.

Section 2264 of the Code of Laws provides: That “any Judge of the Circuit Court is authorized to send to the State Hospital for the Insane, every person charged with the commission of any criminal offense, who shall, upon the .trial before him, prove to be non compos mentis; and the said Judge is authorized to make all necessary orders to carry into effect this power.”

The act entitled “An act to regulate the practice with reference to proceedings for the appointment of a committee for persons non compos mentis,” approved the 26th of February, 1910, has no application, as it is not necessary to appoint a committee for a person pleading insanity, when charged with a crime.

Whatever doubts may have been entertained as to the power of the Judge to determine the issue raised by the plea of insanity, in a criminal case, there never has been any question as to the right to submit such issue to a jury, in the absence of a statutory enactment to the contrary. And there is no provision in section 2264 of the Code of Laws, nor any other statutory provision in this State, militating against the right of the Judge to submit such question to a jury.

3 Eighth, Ninth and Thirteenth Exceptions: In the first place, objection was not interposed to the form in which the question of insanity was submitted to the jury. But, waiving such objection, it has not been made to appear that it was prejudicial to the appellant.

*410 Tenth Exception: It does not appear that objection was made to the form of the oath administered to the jurors, nor that there was prejudicial error.

4 Eleventh and Fifteenth Exceptions: The plea of insanity is an affirmative defense, and must be established by the party interposing it by the preponderance of the evidence. State v. Stark, 1 Strob. 506; State v. Paulk, 18 S. C. 514; State v. Bundy, 34 S. C. 439; 10 Enc. of Pl. & Pr. 1317.

5 Twelfth Exception: This exception cannot be sustained for the reason that the fact was not in dispute that the defendant had put up and put down his hand, when told to do so, nor has it been made to appear that the question was prejudicial to his rights.

6 Fourteenth Exception: The question, whether the defendant had knowledge of right from wrong was necessarily involved in the plea of insanity interposed by him. State v. Bundy, 34 S. C. 439.

Seventeenth Exception: There is not a single word, in the charge set out, in the exception tending to show in what light the presiding Judge viewed the facts.

Eighteenth Exception: It is only necessary to refer to the testimony to show that this exception cannot be sustained.

It is the judgment of this Court that the judgment of the Circuit Court be affirmed and that the case be remanded to that Court for the purpose of having another day assigned for the execution of the sentence.