Barrett v. Commonwealth

Citation202 Ky. 153,259 S.W. 25
PartiesBARRETT ET AL., STATE BOARD OF CHARITIES AND CORRECTION, v. COMMONWEALTH EX REL. MCGREGOR, ATTY. GEN.
Decision Date21 December 1923
CourtCourt of Appeals of Kentucky

Rehearing Denied March 28, 1924.

Appeal from Circuit Court, Christian County.

Proceeding by the Commonwealth of Kentucky, on the relation of T. B McGregor, Attorney General, against Henry P. Barrett and others, composing the State Board of Charities and Correction. Judgment for plaintiff, and defendants appeal. Affirmed.

Huggins & Oldham and H. M. Denton, all of Louisville, and Breathitt &amp Breathitt, of Hopkinsville, for appellants.

T. B McGregor, Atty. Gen., for appellee.

McCANDLESS J.

In a trial in the Jefferson circuit court, Frank Thomas was convicted of murder and his punishment fixed at death. On appeal to this court that judgment was affirmed in an opinion reported in 196 Ky. 539, 245 S.W. 164.

Thereafter in compliance with section 1137, Ky. Statutes, he was conveyed to the state penitentiary at Eddyville to await the execution of the sentence. The Governor fixed the date for his execution at February 25, 1923.

A few days prior to that date his attorneys filed in the Lyon circuit court clerk's office a petition in accordance with section 272a, Ky. Statutes, alleging that he was then insane and asking for an inquisition to determine that matter. Subsequent proceedings were had in accordance with other provisions of that chapter and the prayer of the petition, the inquest being held by the county judge of Lyon county.

The jury found Thomas to be a person of unsound mind, and by the judgment of that court he was taken from the custody of the warden of the state penitentiary at Eddyville and committed to the Western State Hospital at Hopkinsville in Christian county.

On the 24th day of May, the commonwealth of Kentucky, on relation of the Attorney General, filed a petition in the Christian circuit court against the members of the state board of charities and corrections alleging all the foregoing facts and further stating that he had information that Frank Thomas had been restored and was then of sound mind and of sufficient mentality to know right from wrong and to realize the consequences of his acts and know and realize the purpose for which the judgment of the Jefferson circuit court, criminal division, was being carried into effect.

Summons were served upon the members of the board and upon Frank Thomas. On June 6th, being the 6th day of the June term of the Christian circuit court, the other defendants and Thomas, through his attorneys, filed a special demurrer to the jurisdiction of the court, which was overruled and exceptions taken.

On the 9th day of that term and over the objections of the appellants' attorneys, the relator filed an amended petition, in which he alleged that the superintendent of the asylum in which Frank Thomas was incarcerated had on the 24th day of May, 1923, filed a report with the state board of charities to the effect that he (Frank Thomas) still retains his mental vigor and is not insane. The original report was filed as an exhibit with that pleading. It was quite comprehensive detailing the conduct and conversations of Thomas while a ward in the asylum; the kind and character of examinations made by the different members of the staff and their observations; also, a diary of the physician in charge as to his daily transactions with the patient; the family history so far as they were able to learn it; and the final diagnosis, which was, "not insane"; the report being signed by the superintendent, assistant superintendent, and the attending physicians, constituting the entire hospital staff.

Subsequent to this, on the thirteenth day of the term, an inquisition was had, and a majority verdict signed by nine members of the jury was returned, finding the defendant to be of sound mind. A judgment was entered in accordance with the verdict, and further directing that Thomas be returned to the Eddyville penitentiary and replaced in the custody of the warden thereof to await the execution of the sentence of the Jefferson circuit court. Thomas entered a motion for a new trial, and upon it being overruled has appealed to this court.

The grounds relied upon for reversal are: (1) Error in order overruling special demurrer to the jurisdiction of the Christian circuit court; (2) error in instruction authorizing a majority verdict.

The direct issue relates to proceedings for restoration, but for a correct understanding of this question we deem it essential to also consider the law relating to original inquests.

As to the first ground it is insisted that as the Lyon county court had held the first inquest, it acquired exclusive jurisdiction to hear and determine the question as to restoration of appellant's mind, and the cases of Upton v. Bush, 135 Ky. 102, 121 S.W. 1005, and Com. v. Redd, 196 Ky. 798, 245 S.W. 507, are cited as establishing that rule.

Upton had been found incompetent to manage his estate and a committee appointed therefor, who was exercising the trust under the orders of the court. He sought a restoration under the provisions of section 2160, Ky. Statutes 1909, and in referring to jurisdiction the court said:

"The court which found the person to be of unsound mind is the tribunal that should open up the judgment in the case; for the person is a ward of that court, and his estate is in its custody till the judgment is vacated."

Under a similar state of facts this language was quoted with approval in the Redd Case, but it must be remembered that in those cases the courts were treating with their own judgments as affecting matters directly under their control; that having acquired a continuous jurisdiction of the ward and his property such jurisdiction could not be interfered with by any other tribunal.

At the time those decisions were rendered, proceedings to establish unsoundness of mind generally were regulated by the provisions of chapter 67, sections 2149-71, Ky. Statutes 1909. Inquests were authorized for incompetency by section 2155, for other unsoundness of mind by section 2162, and for restoration by 2160; each requiring a jury to pass upon the issues of fact.

That chapter was repealed by the enactment of sections 272a1-272a42, Ky. Statutes 1922, under which all inquests are now held in the circuit court; but in vacation before the circuit judge, or in his absence before the county judge. The proceedings may be begun by any reputable person either from knowledge or from information and belief. An elaborate procedure is mapped out, and when followed it is incumbent upon the court to hold the inquest, and a jury may be demanded or waived by the parties. This applies to original inquests, no provision being made for a judicial tribunal to inquire as to the restoration of mind of a person after he has been adjudged of unsound mind.

A consideration of these statutes clearly indicates that they were intended to apply only to civil rights of persons and property, and not to cover inquests growing out of criminal cases which are based on entirely different principles and which are regulated by the common law and the Criminal Code.

At common law a person was not chargeable with a crime committed by him while insane, and this defense could be made on the criminal trial and heard and determined by the jury trying that case. If he became insane after the commission of the offense but before or after arraignment or after a verdict, or even after judgment, the attention of the court being called to that fact, the court would suspend proceedings until he was restored. This was not a defense, but it was thought while in such condition before verdict the defendant would be unable to make proper defense, and that after verdict, but before sentence, he might be able, if sane, to show some reason why judgment should not be pronounced; even after judgment the law in its humanity would not inflict punishment upon one who at the time was incapable of understanding the reason therefor--this not on account of any legal right, because none such remained and his life was forfeited, but as an act of mercy and clemency.

In such cases, if the court was satisfied that the defendant was insane, the reprieve was granted. If satisfied that he was not insane, it was refused, without reference to a jury in either instance; but in cases of doubt, while the right of a jury trial was not inherent, it was usual to impanel a jury and summarily try the issue. Cooley's Blackstone, vol. 2, p. 1254, and notes; 1 Hawkins, P. C. 2, and notes; 4 Blackstone, p. 396; Bulger v. People, 61 Colo. 187, 156 P. 800; Laros v. Com., 84 Pa. 200; Nobles v. Ga., 168 U.S. 398, 18 S.Ct. 87, 42 L.Ed. 515; State v. Bethune, 88 S.C. 401, 71 S.E. 29; 16 C.J. 1338, § 3145; State v. Barker, 79 Neb. 361, 112 N.W. 1143, 113 N.W. 197; State v. Nordstrom, 21 Wash. 403, 58 P. 248, 53 L.R.A. 584.

The provisions of our Criminal Code correspond very closely to those of the common law. Insanity at the time of the commission of the crime is not covered by specific statutes, and our courts recognize it as a common-law defense.

Under section 156, Criminal Code, if the court is of the opinion that there are reasonable grounds to believe that a defendant on trial is insane, an inquest is immediately held, and if adjudged insane he is conveyed to the nearest asylum to be there confined until restored, when he is returned to the jail of the county. Section 287 authorizes the same procedure if insanity develops after verdict of conviction and before sentence. Section 294 directs the sheriff to execute the death penalty, and section 295 authorizes him to suspend the sentence under the conditions of 296, which provides that if after a...

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6 cases
  • Solesbee v. Balkcom
    • United States
    • U.S. Supreme Court
    • 20 Febrero 1950
    ...§§ 19-2709 to 19-2712, 19-3301 (1948). (19) Ky.Rev.Stat. § 431.240 (1948). See Ky.Codes, Crim.Prac. §§ 295—296 (1948); Barrett v. Commonwealth, 202 Ky. 153, 259 S.W. 25; Stucker v. Commonwealth, 261 Ky. 618, 88 S.W.2d 280; Murrell v. Commonwealth, 291 Ky. 65, 163 S.W.2d (20) Mo.Rev.Stat.Ann......
  • State v. Henke
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    • Washington Supreme Court
    • 29 Agosto 1938
    ... ... Peterson, 90 Wash. 479, 156 P. 542; ... State v. Schrader, 135 Wash. 650, 238 P. 617, 243 P ... 10; State v. Vann, 84 N.C. 722; Barrett v ... Commonwealth, 202 Ky. 153, 259 S.W. 25; State v ... Deschamps, 41 La.Ann. 1051, 7 So. 133 ... It is ... ...
  • Howell v. Kincannon
    • United States
    • Arkansas Supreme Court
    • 17 Febrero 1930
    ...is vested in the trial judge. After sentence the policy of our laws seems to be to vest it in the executioner." Barrett v. Commonwealth, 202 Ky. 153, 259 S. W. 25, 28. In view of the sections of our Criminal Code above quoted, and especially of section 290, supra, we can come to no other co......
  • Howell v. Kincannon
    • United States
    • Arkansas Supreme Court
    • 17 Febrero 1930
    ... ... 55, supra, ... would render the remedy abortive, and in effect destroy the ...          In the ... case of Barrett v. Commonwealth, Court of ... Appeals of Kentucky, December 21, 1923, reported in 202 Ky ... 153, 259 S.W. 25, in dealing with an identical ... ...
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