Berwick v. State, A-11297

• Decision Date: 21 March 1951
• Docket Number: No. A-11297,A-11297
• Citation: Berwick v. State, 229 P.2d 604, 94 Okla.Crim. 5 (Okla. Crim. App. 1951)
• Parties: BERWICK v. STATE.
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 604

229 P.2d 604

94 Okla.Crim. 5

BERWICK v. STATE.

No. A-11297.

Criminal Court of Appeals of Oklahoma.

March 21, 1951.

Syllabus by the Court.

1. Under Sec. 1162, et seq, Tit. 22 O.S.A., if a doubt arises in the mind of the court as to the sanity of the defendant, he must order a jury to be impaneled from the jurors summoned and returned for the term, or who may be summoned by direction of the court, to inquire into the sanity of the defendant, either before the trial or before judgment and sentence is pronounced.

2. This doubt may arise in the mind of the court upon application for a continuance, motion for new trial, motion in arrest of judgment, by ex parte affidavit or declaration of a bystander, or the court of its own motion; and while the court cannot act arbitrarily in the matter, it has the right to look to the source of the information, and come to a proper conclusion, from all the facts and circumstances, whether there is a doubt in his mind as to the sanity of the defendant.

3. If a claim coming from a reputable source is made, either at the beginning of the trial or at the time for judgment and sentence, that the defendant is insane at the time, with a reasonable showing or tender of proof in support thereof, it is the duty of the court to submit the question to a jury.

4. When the motion is made and supported by such a showing, then a legal doubt of defendant's sanity arises, and it is the duty of the trial court to impanel a jury and to try the issue. While a trial judge may personally have no doubt of defendant's sanity, yet if the motion and showing in support thereof is substantially as outlined, it is sufficient legally to raise a doubt. In such case, a refusal to submit the issue to the jury is an abuse of discretion.

5. Where counsel filed a written request for a sanity hearing for accused, supported by affidavit of accused's mother setting out facts to support her contention that her son was not mentally responsible and was presently insane, and one judge orders an examination by a recognized mental specialist, and said examination, according to the return of the sheriff, was made, but nothing appears in the record to show the result except the testimony of the mother that the physician told her that her son 'was not right'; and the prosecuting witness files a verified letter addressed to the county attorney raising the question of accused's sanity and requesting that the prosecution be dismissed, and counsel further files a 'plea' of not guilty by reason of insanity and now insane, and a second judge overrules the request for a sanity hearing and resets the case, which comes on for trial before a third judge, under such circumstances it was an abuse of discretion for the court to have refused to submit the issue of sanity to a jury.

6. Counsel for defendant could not waive the question by proceeding to trial before a third judge without further raising the issue of sanity. The trial judge is held to have full knowledge of the state of the record, and it is assumed that the third judge had full knowledge of these matters.

7. The question of sanity was further raised on motion for new trial, which afforded the trial judge further notice, and a jury could have been impaneled prior to sentence to try that issue. Tit. 22 O.S.A. § 1162, et seq.

Rutherford Brett, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

POWELL, Judge.

The plaintiff in error, Richard Neil Berwick, hereinafter referred to as defendant, was charged by information filed in the district court of Oklahoma County with the crime of robbery of Shirley Thomas Moore, by force and fear; was tried to a jury, convicted, with punishment left to the court, who assessed the penalty at twenty-five years confinement in the penitentiary.

Defendant's petition for reversal of the conviction as set forth in brief on appeal was so strong that the Attorney General was unable to answer the legal propositions raised, but was content with a recital of the facts, and this practically amounts to a confession of error.

Defendant argues the ten specifications of error interposed in petition in error under two propositions set out in brief, and being:

'I. If a claim coming from reputable source is made at the beginning of the trial, or at the time of judgment and sentence, that the defendant is insane at the time, with reasonable showing or tender of proof in support thereof, it is the duty of the court to submit the question of insanity at the time of trial to a jury.

'II. When a doubt is raised as to the sanity of the defendant, counsel for the defendant cannot waive the right of the defendant to an inquiry as to defendant's present insanity.'

The record discloses that the information was filed on January 13, 1949; that on January 14 defendant appeared in court for arraignment, waived reading of the information and entered his plea of not guilty, and that thereafter, on January 24, a 'petition' signed and verified by Marie Fuller, mother of defendant, was filed, in which petition it was stated that defendant, while in military service in Japan, had been injured in a fight; that he had been struck on the head with a piece of iron, was seriously hurt and had been hospitalized for a considerable time; that since receiving said injuries defendant's mind had been seriously impaired; that he had become a kleptomaniac; that he had committed thefts and one violation of law after another, and that he was not mentally responsible.

The petition prayed that defendant be given a trial by jury to determine the question of present sanity. Under date of February 2, 1949, the district court made an order directing that defendant be taken to the office or sanitorium of Dr. Coyne H. Campbell for a thorough examination as to his mental condition. The return of the sheriff to this order recites that defendant was taken to the sanitorium as directed in said order. There is nothing in the record to show the result of such examination. Dr. Campbell was not called as a witness.

On February 24 there was filed a communication addressed to the county attorney under date of February 22 by the prosecuting witness, Shirley T. Moore, in which reference was made to the mental condition of defendant, and the county attorney was requested to dismiss the charge. The complaining witness stated that he was convinced that defendant was in need of medical treatment and should be placed in a veteran's hospital; that witness did not wish him prosecuted and if forced to testify in the case would state on the witness stand that he wished the case dismissed. On the same day there was filed on behalf of the defendant a written 'plea' in which it was stated that defendant 'pleads not guilty by reason of insanity and now insane.' On the same day, there was filed an 'answer' on behalf of the county attorney, denying the allegations of the above-mentioned 'plea.'

On said February 24, there was entered on the clerk's minutes an entry showing the case 'stricken 2-24-49, and reset for March jury docket. Def's motion to dismiss overruled; exc. allowed,' the motion being ruled on by a judge other than the one ordering defendant's examination. On March 4, another entry was made showing the case reset for March 16.

On March 16 the case came on for trial before District Judge Glen O. Morris, a third judge in the case, at which time defendant appeared in person and by counsel, and a jury was selected and sworn to try the case.

Up to this point there is nothing in the record to show that the question of the mental capacity of the defendant had ever been called to the attention of Judge Morris. The order directing that defendant be taken to the sanitorium for examination had been made by a different judge. The minutes in connection with defendant's arraignment would not show any question of present sanity and the record does not indicate that the written 'plea' signed by defense attorneys was called to the court's attention. The only thing indicating that the issue might have come to the attention of Judge Morris is found in the clerk's minutes of March 16 as disclosed by the record herein, where it is recited that, 'Def. waives hearing on application for sanity hearing, and elects to go to trial on issues presented in the information filed herein.'

At the trial, Dr. B. H. Moore testified on behalf of the defendant that he regarded him insane and in need of treatment. It cannot be determined from the record whether it was the doctor's opinion that he was legally and not merely medically insane. Two doctors testified in rebuttal for the state and expressed the opinion that the defendant was sane; that is, could tell right from wrong. There was no demand, other than the demands recited, for trial as to his present mental condition after conviction and before sentence, though the petition for new trial did set out among other things, 'That the court erred in denying a sanity hearing on January 24, 1949, at which time the defendant was prepared for said hearing and had all witnesses in said court.' Also the instrument or 'plea' filed by defendant at the time of the trial, above quoted, contained the words 'and now insane.' A number of defendant's witnesses recounted unusual and unorthodox acts of defendant covering a period of time since return from the military service. The county attorney in cross-examining the defendant's mother brought out from her: 'I got a paper to have him taken to Dr. Coyne Campbell's Clinic.' He then asked her, 'Did Dr. Campbell tell you he was insane? A. He hold me he wasn't right. I haven't had him examined by Dr. Parker, the psychiatrist for the Veterans' Hospital.' This is all the evidence concerning the results of the examination ordered by the court. The State did not offer any different evidence. Of the physicians testifying it appears that the examinations made...