232 F.2d 274 (5th Cir. 1956), 15665, Howard v. United States

Docket Nº:15665.
Citation:232 F.2d 274
Party Name:Bobby, Jack HOWARD, Appellant, v. UNITED STATES of America, Appellee.
Case Date:April 20, 1956
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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232 F.2d 274 (5th Cir. 1956)

Bobby, Jack HOWARD, Appellant,


UNITED STATES of America, Appellee.

No. 15665.

United States Court of Appeals, Fifth Circuit.

April 20, 1956

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

Lonny F. Zwiener, Asst. U.S. Atty., Austin, Tex., for appellee.

Before HUTCHESON, Chief Judge, and BORAH, RIVES, TUTTLE,

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CAMERON, JONES and BROWN, Circuit Judges.

RIVES, Circuit Judge.

A rehearing before the court en banc was ordered by a majority of the judges of this Circuit, 28 U.S.C.A. § 46(c), to settle the questions upon which the judges composing the original panel were in disagreement. See Howard v. United States, 5 Cir., 229 F.2d 602.

As to the most important question, the proper test of criminal responsibility where insanity is asserted, we note that the Court of Appeals of the District of Columbia has heretofore taken the position that the Supreme Court in Davis v. United States, 165 U.S. 373, 375, 17 S.Ct. 360, 41 L.Ed. 750, at least impliedly recognized the test as being either the incapacity from some mental disease or defect to distinguish between right and wrong with respect to the act, or the inability from such disease or defect to refrain from doing wrong in the commission of the act, 1 and that its decision so indicating has been cited with apparent approval by the Supreme Court. 2See also, Matheson v. United States, 227 U.S. 540, 543, 33, S.Ct. 355, 57 L.Ed. 631; Weihoffen, 'Mental Disorder as a Criminal Defense', pp. 129, 130.

In the face of such recognition by the Supreme Court of a test of criminal responsibility, we do not feel at liberty to consider and decide whether in our opinion the recent modification of such test in the District of Columbia 3 is sound or unsound, nor whether some other test should be adopted. This Circuit follows the law as stated by the Supreme Court and leaves any need for modification thereof to that Court, while the District of Columbia Circuit is entrusted with a considerable degree of autonomy with respect to law enforcement in the District. 4 We, therefore, leave unchanged the test of criminal responsibility as thus established.

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This Court is not in position to hold that the district court erred in treating insanity as a jury issue. Only slight evidence of insanity of a defendant at the time of commission of the act is required to raise the issue for submission to the jury. 5

We think, however, that the district court imposed upon the defendant too heavy a burden when it charged that the presumption of sanity continues 'until the contrary is shown by proof, ' and again, 'until he is proven to be insane.' The rule is that, 'If the whole evidence, including that supplied by the presumption of sanity, does not exclude beyond reasonable doubt the hypothesis of insanity, of which some proof is adduced, the accused is entitled to an acquittal of the specific offense charged', Davis v. United States, supra, 160 U.S. at page 488, 16 S.Ct. at page 358; see also, Lee v. United States, supra, 91 F.2d at pages 330-331; Weihoffen, 'Mental Disorder as a Criminal Defense', pp. 226, 241.

The district court further erred in its charge in requiring the defendant to adduce proof both that he did not know the difference between right and wrong and that he was unable to refrain from doing wrong. Either condition existing at the time of the commission of the act and as the result of some mental defect or disease was sufficient to make the defendant not guilty. Cf. People v. Kelly, 302 N.Y. 512, 99 N.E.2d 552, 553, 554; Weihoffen, 'Mental Disorder as a Criminal Defense', pp. 74, 75, 76. 6

Upon rehearing, therefore, affirmance is vacated, the judgment of conviction is reversed, and the cause remanded for another trial.

Reversed and remanded.

CAMERON, Circuit Judge (dissenting).

For the reasons stated in the majority opinion filed in this case February 2, 1956, 5 Cir., 229 F.2d 602, 607, I think the judgment of the Court below ought to be affirmed and I dissent from the reversal now entered on the petition for rehearing. Specifically, the majority reverses because it conceives that the Court below erroneously charged the jury on the burden of proof as to insanity and in defining the test of insanity (conjunctive instead of disjunctive) to be applied by the jury. The Court below got its entire charge on those points from two Supreme Court decisions. Moreover, the language of the dissenting opinion of Judge Rives, upon which the Court en banc ordered the rehearing, together with that of the majority opinion now filed, constrain me to consider, at the outset and in more detail than in the original majority opinion, the state of law with respect to insanity as a defense and the charge of the Court below relating thereto.

The dissenting opinion took the original majority to task because it 'approves the century old 'right and wrong test' of the McNaghten case, 10 Cl. and Finn. 200, 8 Eng.Rep. 718 (1943), which has heretofore received the approval of this Court, but not of the Supreme Court

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* * *'; 1 and embraced the revolutionary doctrine of Durham v. United States, 1954, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430, with the statement, 'I agree with the District of Columbia Circuit * * * that the better rule, more consonant with the developing science of psychiatry, is to ascertain simply, was the defendant suffering from a mental defect or disease which caused him to commit the criminal act?'

While the majority opinion now filed does not accept or reject the doctrines of Durham, it does look to a decision of the D.C.Circuit 2 for a delineation and appraisal of the decisions of the Supreme Court and for a declaration of what those decisions mean. 3 The conclusions reached in the majority opinion seem, therefore, to be based upon the 'position' taken by the D.C. Court to the effect that Supreme Court decisions had impliedly recognized the rule upon which the reversal is based.

The 'right and wrong test' completely discarded by the Durham case became firmly established as the law of insanity in this country under the two decisions rendered by the Supreme Court, in Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499, and 165 U.S. 375, 17 S.Ct. 360, 41 L.Ed. 750. This Court is able to read and understand those cases and decide upon their meanings without the necessity of resorting to the estimate placed by another court upon the holdings it conceived to be implicit in those decisions.

Davis was found guilty of murdering Sol Blackwell at the Creek Nation, in the Indian territory, within the Western District of Arkansas, and sentenced to be hanged. The indictment charged that the murder had been committed 'feloniously, wilfully, and of his malice aforethought'. No counsel appearing upon appeal to represent Davis, the Assistant Attorney General presented both sides before the Supreme Court. The brief of the Attorney General showed that the question presented was whether the burden of proof was 'on the defendant to establish insanity to the reasonable satisfaction of the jury', or whether the jury should acquit 'if the whole evidence raises a reasonable doubt in their minds as to whether the defendant is sane or not'. The Supreme Court resolved that conflict by announcing that Davis was 'entitled to an acquittal of the specific crime charged if, upon all the evidence, there is reasonable doubt whether he was capable in law of committing crime'. 4 The syllabus, 160 U.S. at page 469, thus summarizes what was decided: 'The jury cannot properly return a verdict of guilty of the offence charged if, upon the whole evidence, from whichever side it comes, they have a reasonable doubt whether, at the time of killing, the accused was mentally competent to distinguish between right and wrong, or to understand the nature of the act he was committing.'

In developing this 'right and wrong' thesis the Supreme Court, 160 U.S. 479, 16 S.Ct. 355,

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took up first the English cases, declaring 'the most deliberate and careful statement of the doctrine in the English courts is to be found in M'Naghten's Case * * * decided in 1843'. Its quotation from that case concluded with a statement of the test as being whether "the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong'.'

Thereupon, Mr. Justice Harlan, who wrote the first Davis opinion, discussed more than twenty cases from state and federal courts, as well as such commentaries as those of Blackstone, Chitty, and Greenleaf. These words of the Justice, 160 U.S. at page 488, 16 S.Ct. at page 358, may be considered as epitomizing the Court's findings from the many authorities considered:

'His guilt cannot be said to have been proved beyond a reasonable doubt-- his will and his acts cannot be held to have joined in perpetrating the murder charged-- if the jury, upon all the evidence, have a reasonable doubt whether he was legally capable of committing crime, or (which is the same thing) whether he willfully, deliberately, unlawfully, and of malice aforethought took the life of the deceased. As the crime of murder involves sufficient capacity to distinguish between right and wrong, the legal interpretation of every verdict of 'guilty as charged' is that the jury believed from all the evidence beyond a reasonable doubt that the accused was guilty, and was therefore responsible criminally for his acts.' 5

Upon remand of the Davis case the trial court followed the opinion of the Supreme Court and placed the burden of establishing his insanity upon the Government, and...

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