Howard v. United States, 15665.

Citation229 F.2d 602
Decision Date20 April 1956
Docket NumberNo. 15665.,15665.
PartiesBobby Jack HOWARD, Appellant, v. UNITED STATES of America Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

W. V. Dunnam, Jr., Waco, Tex., for appellant.

Lonny F. Zwiener, Asst. U. S. Atty., Austin, Tex., Russell B. Wine, U. S. Atty., San Antonio, Tex., for appellee.

Before HOLMES, RIVES and CAMERON, Circuit Judges.

CAMERON, Circuit Judge.

The question presented by this appeal is whether the Court below correctly charged the jury in connection with the plea of insanity which was the only defense appellant sought to support in the Court below. Bobby Jack Howard was convicted under an indictment charging him with the robbery of the Farmers State Bank of Meridian, Texas, by putting the life of a person in jeopardy through the use of a dangerous weapon in violation of 18 U.S.C.A. § 2113(d), and was sentenced to serve twenty-five years imprisonment.

He offered no evidence tending to controvert the Government's evidence as to the commission of the crime, and that evidence clearly supports the verdict of the jury establishing that, on January 31, 1955, Howard, using a pistol pointed at the cashier, a woman, robbed said bank, fleeing with more than $3,000.00 taken from the cash drawer.

His appeal raises a number of questions but the only one meriting discussion is that above stated. The evidence offered on behalf of appellant to sustain his alleged insanity was meager and unconvincing and hardly amounts to more than a scintilla.

The only witness introduced by appellant was his mother who testified that, when appellant was about nine years of age, he had measels which "settled in his head", causing him to become an epileptic. Following the seizures incident to that malady appellant was said to suffer severe headaches producing an abnormal state of mind which lasted one or two days. The only abnormality specified by her manifested itself by a display of irritability instead of his normally kindly disposition. When asked categorically whether during the period following these seizures she formed any opinion "as to whether or not he was of sound or unsound mind at that time", she replied, "Well, not too much so * * *." He had been away from home about twelve years and she had seen him less than a dozen times during that period.

She testified that, on the morning preceding that of the robbery, appellant did not get up to breakfast when she called him, stating that he was sick. He moved from his own bed into hers because she had guests and she observed that his eyes were "all bloodshot, and I knew that he had had one of them seizures when I looked at him". He remained in bed until about one o'clock and took medicine for a severe headache. During the afternoon he sat around holding his head and indicating that he was in considerable pain. About eight o'clock that night he got in the car and drove off. His actions are unaccounted for from then until the time of the robbery a little after one P.M. the following day.

Appellant's only other evidence consisted of a stipulation dictated into the record in which it was agreed that he had enlisted in the United States Army in October, 1942 and had been granted a medical discharge the following year for epilepsy. He had enlisted in the Air Force in February, 1946 and had been discharged in August, 1947, "for severe chronic anti-social personality". In 1949 shrapnel was removed from his forehead and side, this having been produced by an accidental explosion of a hand grenade. On two different occasions in the past appellant had slashed his own wrists, and appellant was agreed to have epilepsy grand mal. No contention is made that the accidental explosion resulting in the shrapnel in his forehead and side had any connection with the supposed insanity and no details were given as to the two incidents when appellant slashed his own wrists.

The Government presented only one witness in rebuttal, a doctor who was a "member or diplomate on the American Board of Psychiatry and Neurology", who had, under Court order, examined appellant on March 7, 1955. The examination consisted of a "psychiatric examination, neurological examination, physical examination", and also examination with the aid of an electro-encephalograph which was described as a "brain wave". This last examination was for the purpose of determining whether any brain damage had resulted from appellant's epilepsy, and the results were negative. The specialist testified that the chief abnormality he found in appellant was that he presented anti-social type of personality. It was his opinion that, at the time of the examination and at the time of the robbery, appellant had the ability to distinguish right from wrong and to adhere to the right. From his examination and from the history given by appellant, the specialist "concluded that he had not been insane in the past". He further explained that epilepsy grand mal manifested itself by violent seizures during which the patient would be unconscious and subject to convulsions; when the seizure was at an end, the patient would be left weak and depleted but not insane; a very small percentage of epileptics were insane.

There was no proof at all that, at the time of the robbery, appellant was not in full possession of his mental faculties or that he was incapable of having a criminal intent or of distinguishing between right and wrong. These are the ultimate tests by which a determination is reached as to whether a defendant is responsible for his criminal acts.

Appellant's attorney dictated seven pages of exceptions to the Court's charge embracing twenty specifications of alleged error. More than half of these were devoted to the Court's charge on the defense of insanity. The chief attack made upon that feature of the Court's charge centered around the contention that the Court used the conjunctive, and, instead of the disjunctive, or, in presenting to the jury what it should find as a predicate for acquittal.1

The excerpts from the charge set forth in the margin are portions of about three pages of the record which the Court devoted to this defense. It is not perceived that the quoted portions of the charge erroneously state the rule because it is made clear that the ultimate fact to be determined was whether the appellant had sufficient mental capacity to form a criminal intent. That basic question is usually resolved by deciding whether the mental capacity was such that the one charged with crime was able to distinguish between right and wrong and to adhere to the right. The closing sentence of this portion of the charge accurately presented the question: "The test of responsibility, where insanity is asserted, is the capacity to distinguish between right and wrong with respect to the act." No case is brought to our attention which tends to condemn the language set forth in the marginal quotation.

It is further clear that this language was entirely proper when fitted into the charge as a whole. The Court went to great lengths to spell out accurately what the jury must find with respect to the insanity plea and to place the burden upon the Government to prove beyond a reasonable doubt that appellant had at the time mental capacity sufficient to form a criminal intent. It is, of course, elementary that the charge as a whole is looked to in deciding whether it correctly states the law. Spring Co. v. Edgar, 1878, 99 U.S. 645, 25 L.Ed. 487; Patterson v. United States, 5 Cir., 1951, 192 F.2d 631. This pertinent language was used by us in the latter case, at page 633:

"As to the claimed errors in the charge, we are convinced that, except perhaps from the strained and hypercritical point of view once obtaining in the review of criminal cases but now no longer possible in the federal courts, the action of the trial court, in giving and refusing charges, was unexceptionable. We are convinced, too, from the consideration of the charge as a whole, rather than from a view alone of isolated portions of it, that appellant was afforded a fair trial with full opportunity to defend himself, including the opportunity of presenting and urging his defenses."

We stand under like conviction here. The record depicts an aggravated crime calling for severe punishment and appellant was given full opportunity to develop his defense of insanity. His case was handled by a court-appointed attorney with unusual earnestness, skill and intelligence. The jury had the whole situation before it and was accurately instructed as to the legal principles which should guide its deliberations. Its verdict and the sentence imposed by the Court are justified and we do not feel constrained to disturb them. The judgment appealed from is

Affirmed.

RIVES, Circuit Judge (dissenting).

The sufficiency of the evidence to require submission to the jury of the issue of insanity was primarily for the trial judge. Both he and the jury had the advantage of seeing and observing the defendant, which this Court lacks. As bearing on the issue of insanity, the trial judge and the jury could take into consideration not only the evidence specifically directed to that issue, but also the defendant's appearance and demeanor, and indeed all of the evidence in the case. They had a right to consider that the circumstances of the robbery disclosed an utter lack of sense and no effort whatever at concealment.

The defendant was staying at the house of his uncle, a short distance from Meridian, Texas, in which town the bank was located across the street from the sheriff's office. He borrowed his cousin's 1946 Ford automobile, bearing license tag number DF 7888, which he parked unconcealed in plain view from the window of the bank. The sheriff's wife, the bank cashier, and the bank president, all three, took down the tag number. He entered the bank unmasked at 1:15 P.M. and committed the robbery. He was wearing a grayish tweed...

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  • United States v. McCracken
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • January 17, 1974
    ...Hospital . . .." Though the question has never been presented squarely in this Court, Judge Rives, dissenting in Howard v. United States, 5 Cir. 1956, 229 F.2d 602, 608, suggested that this provision might be available to federal district courts outside the District of Columbia. The subsequ......
  • Carter v. United States
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • December 30, 1963
    ...testimony before the commissioner. United States v. Westerhausen, 7 Cir., 1960, 283 F.2d 844. And compare the facts of Howard v. United States, 5 Cir., 1956, 229 F.2d 602, affirmance vacated and conviction reversed on errors in the charge, 232 F.2d 274, cited We think that the charge on the......
  • United States v. Currens, 13152.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • May 1, 1961
    ...States, 6 Cir., 282 F.2d 450, 464, Order of Issuance of New Mandate, 6 Cir., 1960, 285 F.2d 81 and Howard v. United States, 5 Cir., 1956, 229 F.2d 602, 608 (Rives, J. dissenting), but compare Sauer v. United States, 9 Cir., 1957, 241 F.2d 640, 651-652, note 32 and 1881, 17 Op.Atty.Gen. 211.......
  • Blake v. United States
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    • February 12, 1969
    ...750 (1897). This is the standard which this circuit has followed. Howard v. United States, supra, 232 F. 2d 274, 275 (en banc), affirming 229 F. 2d 602. See also Carter v. United States, 5 Cir., 1963, 325 F.2d 697 (en banc), cert. den., 377 U.S. 946, 84 S.Ct. 1353, 12 L.Ed.2d 308, where the......
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