Blackburn v. State

• Decision Date: 16 November 1954
• Docket Number: 8 Div. 407
• Citation: 38 Ala.App. 143,88 So.2d 199
• Parties: Jesse BLACKBURN v. STATE.
• Court: Alabama Court of Appeals

Page 199

88 So.2d 199

38 Ala.App. 143

Jesse BLACKBURN v. STATE.

8 Div. 407.

Court of Appeals of Alabama.

Nov. 16, 1954.

Rehearing Denied March 15, 1955.

Mitchell & Poellnitz, Florence, for appellant.

Si Garrett, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.

PRICE, Judge.

To an indictment charging him with robbery, defendant plead not guilty and not guilty by reason of insanity. His trial resulted in a verdict of guilty and a sentence of twenty years in the penitentiary.

The State's evidence was to the effect that Thomas Clyde Wright operated a Rooling Store for one W. N. Greenhill. On April 19, 1948, Mr. Wright drove the store over his regular route. He started up Crowell Hill, on the Allsboro Road, in Colbert County, after dark. At that time he had in his possession a billfold containing approximately $76 belonging to Mr. Greenhill and a billfold containing $51 of his own money. As he put his truck in 'double low' he saw someone coming off the bank toward the road with something in his hand that looked like a gun. He remembered nothing further until he regained consciousness in a hospital two weeks later. At that time he had neither the billfolds nor the money.

Mr. and Mrs. Hubbard and J. C. James were on Crowell Hill and saw the Rooling Store stopped on the road. A maroon colored Buick, bearing an Illinois license plate, was parked by it. These witnesses heard a 'rumbling noise,' like the sounds of a struggle from inside the store. Mr. James testified two colored men got into the Buick and drove away. Mr. James and Mr. Hubbard armed themselves and returned to the scene about thirty minutes later. They found Mr. Wright at the rear of the store, trying to scotch it so it would not roll down the hill. He was badly beaten, dazed and 'out on his feet.' They found a bloodstained tire tood and two hats inside the store.

Deputy Sheriff Stanford arrived at Crowell Hill between 10:30 and 11:30 that night and found two hats and a tire tool and blood inside the store. The articles found by him were introduced in evidence.

Dr. Gary testified he examined Mr. Wright at the hospital on the night of the alleged robbery. He was unconscious and bleeding from the ears and nose. X-rays made later showed multiple linear fractures on the skull, caused by a blunt instrument used with great force.

At the time of the alleged crime appellant was a resident of Chicago, Illinois. About a week prior thereto he came to Alabama in company with Dennis Thorne and Robert Howell for the purpose of burying his deceased brother. The trip was made in a maroon Buick with an Illinois tag. The prosecuting witness testified he had seen these men and the automobile at the home of Dennis Thorne's brother on the Allsboro Road. One of the men bought a package of cigarettes from him and paid for it with a twenty dollar bill. On April 16, 1948 appellant married Fanny Rogers in Iuka, Mississippi. There was a wedding party that night at Jack Thorne's house. The couple spent that night at Leon Fuqua's and the next afternoon appellant left with Howell and Dennis Thorne. The next time his bride saw him was in May, 1948, when he was in the Colbert County jail.

According to the State's evidence, on May 8, 1948, after appellant was arrested and brought to Colbert County from Gary, Indiana, he confessed the crime to deputy sheriff Stanford. The confession was reduced to writing and signed by appellant two days later. The confession was admitted in evidence as State's exhibit 'A' on voir dire examination for the purpose of determining defendant's mental capacity at the time of making the confession. It was also admitted in evidence before the jury as State's exhibit 'D.' In the confession the defendant detailed the movements of the trio from the time they left Chicago until the night of the robbery; told of his marriage to Fanny Rogers; said there was a conspiracy between the three men to rob the driver of the Rooling Store, which defendant said he subsequently tried to prevent. He stated that at the time of the robbery, 'I carried small wrench which I now identify as the one I used. Shirt I was wearing that night I identify as same which had blood on it and was washed out by Burneice Moore the night we spent in Nashville. The hat officers found in Rooling Store I identify it as the one Robert Hal was wearing at the time of the robery, but this hat belonged to me. I now have been presented with a heavy tire tool which officers said was found in Rooling Store, I identify it as the one Robert Hal used to hit the driver of the Rooling Store, three times on the head.' In the confession defendant stated he flagged the store down on the steep part of the hill. Robert Howell rushed up behind defendant as he stepped on the running board. After Robert Howell struck the driver defendant got the change from his right fron pocket while Robert, Howell was going through his other pockets. After leaving the scene defendant helped to count the money and received $28 as his share and he disposed of some checks that were in the billfolds.

For the defendant, Thomas J. Grace, a field examiner for the office of the Regional Attorney of the Veterans' Administration, identified certain records showing that at the time of the commission of the alleged crime defendant was a 25 year old negro man with a history of mental disorders. On July 1, 1944, at Drew Field, Florida, he was diagnosed as unfit for military service because of psychosis. The Report of Board of Medical Officers was that he had 'recurrent periods of marked confusion and over-activity, assaultiveness with catatonic posturing, teeth grinding followed by severe headache and complete amnesia concerning his behavior, constitutes a threat to others when subject to such attacks,' and recommended his transfer to a Veterans Administration facility for further treatment.

On September 8, 1944, appellant was admitted to a Veterans Administration hospital at Danville, Illinois, from Drew Field, with diagnosis of dementia praecox, simple type, and a history of hallucinations and defective judgment and insight. There, on September 11, 1944, he was given a diagnosis of 'psychosis, manic depressive, manic phase.' On February 14, 1948, the Danville Veterans Hospital placed defenant on a ten-day leave of absence with his sister. He failed to return at the end of ten days and was placed on a 90 day trial visit. On May 24, 1948, not having returned, he was formally discharged from the hospital. His diagnosis on discharge was schizophrenic reaction, paranoid type. The alleged offense occurred prior to the discharge from the hospital. Also a report of an examination by Dr. M. L. Moorer, neuropsychiatrist, April 22, 1949, with a diagnosis 'Schizophrenic reaction, paranoid type. Insane, incompetent and should be placed in insane hospital.' And a rating sheet by the Veterans' Administration, showing defendant's rating to be, 'Schizophrenic reaction, paranoid type, incompetent from 5-24-48.'

The record discloses that after appellant's arrest he showed signs of insanity in the jail and was admitted to Searcy Hospital for observation and report under the provisions of Articles 1 and 2 of Title 15, Code 1940, on July 29, 1948, and remained there until November 12, 1952, when he was released into the custody of Colbert County authorities as sane and competent to stand trial.

On the trial defendant testified the signatures on the bottom of each page of the purported statement to deputy sheriff Stanford appeared to be his signatures but the statement was not true and he had no recollection of having made or signed it. He did not remember being questioned by the sheriff or his deputy and did not remember that anything in the statement took place. He testified he did not commit the offense charged. He also testified he did not remember being in Colbert County in 1948; did not remember being in jail there in 1948 and that he did not remember getting married.

Defendant introduced depositions of Drs. Tarwater and Rowe, which were also introduced on voir dire, and are commented upon further on in this opinion.

Appellant's counsel argue: 'The errors which we primarily urge for reversal hinge upon the trial court's actions in dealing with the alleged written confessions and certain allegedly confessory statements of the appellant.'

After proper predicate was laid the State offered the confession in evidence.

The defendant objected to the introduction of the confession because the corpus delicti had not been proven and because the defendant could be shown not to have had the mental capacity to be a witness on May 8, 1948.

The defendant, on voir dire, introduced depositions of Dr. Harry S. Rowe, assistant Superintendent of Searcy Hospital, and Dr. J. S. Tarwater, Superintendent of Alabama State Hospitals. The report of the lunacy commission appointed July 26, 1948, to investigate the sanity of defendant was attached as exhibit 'B' to each of said depositions. This report was signed by Drs. Tarwater, Rowe and A. M. Richards, and recites in part:

'It is the opinion of each of us, and our opinion jointly and collectively, that the said Jesse Blackburn at the time of his admission to the Searcy Hospital on July 29, 1948, was insane and incompetent. During his stay in the hospital he has continued to exhibit abnormal thinking and abnormal behavior and it is our opinion that he is presently insane. From a study of his case and using information from several other mental hospitals where he has formerly been treated it is our further opinion that he was insane at the time of the commission of the crime for which he is charged.'

Dr. Rowe stated in answer to interrogatories that defendant was suffering from schizophrenia of the paranoid type; in his opinion he was insane at the time of the commission of the crime.

Dr. Tarwater stated that the commission, from a study of the reports and the findings in the case,...