State v. Lammers, 38425

• Decision Date: 10 November 1951
• Docket Number: No. 38425,38425
• Citation: 237 P.2d 410,171 Kan. 668
• Parties: STATE v. LAMMERS.
• Court: Kansas Supreme Court

Page 410

237 P.2d 410

171 Kan. 668

STATE v. LAMMERS.

No. 38425.

Supreme Court of Kansas.

Nov. 10, 1951.

Syllabus by the Court

1. In a prosecution for murder in the first degree, evidence was introduced by defendant, from which a serious question arose as to whether (a) defendant was insane, an idiot or imbecile and unable to comprehend his position and to make his defense, whereupon the court suspended the trial and appointed a commission to determine that question, the commission examined the defendant and determined he was not insane, an idiot or imbecile and unable to comprehend his position and make his defense; the trial proceeded, the defendant was convicted and his punishment fixed at death--Held the statute does not require that any other than doctors of ordinary medicine be on the commission; (b) the defendant was not entitled to a notice that such an inquiry was to be made; (c) he was not entitled to the presence of his counsel while the inquiry was being made by a commission; and (d) he was not entitled to a guardian ad litem while this inquiry was being made.

2. In a case such as that described in paragraph 1 of this syllabus, the jury was brought into the courtroom and asked the court whether or not the defendant would have a chance for a parole for killing his wife and the court answered in effect that such was entirely up to the Governor and the pardon board and the board of administration--Held it was not error to give this instruction orally.

A. O. Delaney, Jr., of Troy, argued for the appellant.

Robert A. Reeder, County Atty., Troy (Robert Guier, of Troy, Harold R. Fatzer, Atty. Gen. and Willis H. McQueary, Asst. Atty. Gen., on the briefs), for appellee.

SMITH, Justice.

The defendant was convicted of murder in the first degree in two counts. The jury fixed the punishment at death. He appeals.

The defendant does not bring any of the facts with reference to the commission of the offense here. He only attacks some proceedings that occurred during the trial. The facts as to those are briefly as follows:

During the presentation of the defendant's evidence his brother testified that defendant had been a dull student in school; had never improved very much; only reached the fifth or sixth grade; he wrote very little and was slow in his reading; that in his opinion the defendant had the mentality of an eight or nine or ten year old child. He also testified that in his opinion the defendant did not understand to the full extent the desperateness of his situation.

An uncle of defendant testified to about the same effect.

Also another acquaintance.

The sheriff of Atchison county, Kansas, where the defendant had been incarcerated after his arrest, testified to about the same effect.

A Catholic priest testified that he was experienced in educational work and had visited with defendant in jail and in his opinion the mentality of defendant was that of a nine-year-old child.

At this point the county attorney filed a motion in which he called attention to testimony that had been given to the effect that the defendant was unable to comprehend his position and to make his defense. He moved that the court appoint a commission or another jury for the purpose of determining the question of whether defendant was insane, an idiot or an imbecile and unable to comprehend his position and to make his defense, all in accordance with G.S. 1949, 62-1531.

The court proceeded to appoint a commission of three practicing physicians in Doniphan county. The court instructed that commission as follows: 'You are now officers of the court. You have been appointed by the court to examine James Lammers in the above entitled case, under Section 62-1531, Revised Statutes of Kansas, 1949, to ascertain, after a thorough examination of the said James Lammers, whether he be insane, an idiot or an imbecile and unable to comprehend his position and make his defense. A person may be illiterate, have a low degree of competency and a low I. Q. rating as relates to scholastic matters but he may have a normal or high degree of competency through native or natural ability. You will not be justified in finding that the defendant James Lammers is unable to comprehend his position and make his defense unless you also find he is insane, an idiot or an imbecile.'

After the hearing the commission made the following report: 'We, the Commission, heretofore appointed and sworn to examine the defendant James Lammers, after careful examination of the said James Lammers, on our oaths, state and find that the said James Lammers is not insane, an idiot or an imbecile and that he is able to comprehend his position and to make his defense.'

Upon the return of that report the trial proceeded with the result that the defendant was found guilty on both counts and the jury fixed his penalty at death by hanging as to each count.

Upon the above verdict being returned counsel for the defendant announced that he was ready to have the prisoner sentenced. Thereupon the court inquired of the defendant and his counsel if the prisoner had any reason to give why sentence should not be pronounced. The defendant said he did not understand. The court repeated the question and he still said he did not understand, whereupon the court made a finding; that the defendant stood mute. The court then found the defendant was without legal reason why sentence should not be pronounced, and pronounced sentence that defendant should be punished by death by hanging on the 18th day of May, 1951, between the hours of six a. m. and twelve noon.

At the time of the appointment of the commission and after the oath had been administered to the members the following colloquy occurred:

'Mr. Reeder: On behalf of the State I would request that the doctors be permitted to engage in their examination of the defendant in the presence of counsel, either for the State or the defense.

'The Court: That is all right with you, Mr. Delaney?

'Mr. Delaney: Oh, I assume it is.

'Mr. Guier: Will the doctors be permitted to make any other examinations other than the mental examination?

'The Court: That, of course, is up to the doctors. If, during their examinations, they are of the opinion his mental condition shows any relationship to his physical condition, they may inquire into the cause of that mental condition in his physical condition. It is hard to separate the two, so if it becomes necessary to do so, you may examine him physically. I take it then you want everyone here present to withdraw from the doctors and the defendant. The officers will have to remain.

'Mr. Guier: They may remain, possibly, out of range.

'Mr. Delaney: If counsel withdraw, everybody withdraws except the officers of the Court?

'Mr. Reeder: The officers, I think, can stand at the door.

'Mr. Delaney: The bailiff, court reporter and everybody withdraws, is that right?

'The Court: That is right. Everybody retire.'

While the jury was deliberating it was returned to the courtroom and the following colloquy occurred:

'The Foreman: We have a question whether or not he would have a chance of a parole for killing his wife.

Thereupon, the Court answered:

'The Court: That is a matter which is entirely up to the clemency of the Governor and the Pardon Board and the Board of Administration. As a direct answer to your question, this court will have to say that they do have that power and I think it is only fair to add that that is a matter that is in the wise discretion of the Governor, the Pardon Board and the Board of Administration. Does that answer your question, sir?

'The Foreman: Yes, sir.'

The trial court in this case saw fit to have the investigation made by a commission. In this the court acted correctly. See State v. Badders, 141 Kan. 683, 42 P.2d 943.

The defendant argued first the court erred because the doctors who were appointed on the commission to examine the mental condition of the defendant were doctors of the ordinary practice of medicine and no trained psychiatrist was appointed on the commission and also that the court erred in denying him the right to have his attorney before the commission with him, and in failing to appoint a guardian ad litem to represent him before the commission.

G.S. 1949, 62-1531, provides as follows: 'Whenever any person under indictment or information, and before or during the trial thereon, and before verdict is rendered, shall be found by the court in which such indictment or information is filed, or by a commission or another jury empaneled for the purpose of trying such question, to be insane, an idiot or an imbecile and unable to comprehend his position, and to make his defense, the court shall forthwith commit him to the state hospital for the dangerous insane for safekeeping and treatment; and such person shall be received and cared for at the said institution until he shall recover, when he shall be returned to the court from which he was received to be placed on trial upon said indictment or information. If in the judgment of the medical superintendent of the state hospital for the dangerous insane, any person committed under this section is not in such condition as warrants his return to the court but is in a condition to be paroled under supervision, the superintendent shall report to the department and the committing court his reasons for his judgment and the plans which have been made for such parole. If the court does not file objection to the parole within sixty days of the date of the report, the superintendent may, with the approval of the department, parole him to a legal guardian or other person, subject to the rules and regulations of the department. (L. 1911, ch. 299, § 4; R.S. 1923, § 62-1531; L. 1949., ch. 323, § 3; June 30.)'

The above statute, G.S. 1949, 62-1531, contemplates the determination of the defendant's mental condition by the court where trial is being held, a commission or another jury empaneled for the purpose of trying...