Bush v. McCollum

Citation231 F. Supp. 560
Decision Date27 May 1964
Docket NumberCiv. A. No. 3-63-451.
PartiesJames E. BUSH, Petitioner, v. Wayne McCOLLUM, Sheriff of Ellis County, Texas, Respondent.
CourtU.S. District Court — Northern District of Texas

Billy J. Moore, Ennis, Tex., and Charles Alan Wright, Austin, Tex., for petitioner.

Sam R. Wilson, Asst. Atty. Gen. of Texas, Houston, Tex., and Bruce Allen, Dist. Atty., Ellis County, Waxahachie, Tex., for respondent.

HUGHES, District Judge.

In this case James E. Bush filed a petition for the issuance of a writ of habeas corpus in the United States District Court for the Northern District of Texas asking for his release from the custody of Wayne McCollum, Sheriff of Ellis County, Texas.

The legal question involved is whether the Fourteenth Amendment requires, in a criminal prosecution of an indigent defendant previously adjudicated insane, that the Court commit him to a mental hospital for examination or provide funds for employment of a psychiatrist or otherwise make available to the jury and to court appointed counsel for the defendant, evidence as to defendant's sanity.

The facts in the case were stipulated. Petitioner, James E. Bush, is a citizen of the United States and a resident of Ellis County, Texas. The respondent, Wayne McCollum, is the Sheriff of Ellis County, Texas.

Petitioner was arrested October 22, 1960 for a crime allegedly committed the previous day. He was indicted for felony theft on February 7, 1961, and on April 2, 1961 the Court appointed an attorney to represent him.

At the time of the alleged offense, petitioner was sixty-four years old and was indigent. Prior thereto on February 14, 1924 petitioner had been found of unsound mind by a jury and that judgment had never been vacated.

On April 21, 1961 the attorney for defendant, the present petitioner, filed two motions. The first requested the Court to send the defendant to a mental institution for diagnosis before being tried and the other requested the Court to appoint and pay for a competent psychiatrist's services to diagnose the defendant's mental condition. It was alleged in both motions that without an evaluation of his mental condition, he would be unable to adequately prepare his defense. Both motions were denied.

On the trial of the insanity issue the County Health Officer, a general practitioner without special training in mental illness, testified for the State that in his opinion the defendant was of sound mind. The examination of the County Health Officer was limited to questioning the defendant with reference to his name, birthplace, age, date of birth, name of the President of the United States, the Governor of Texas, past medical history, hallucinations, and simple mathematical questions.

A psychologist called by the defendant testified on the insanity trial that in a brief examination of the defendant that day, he was unable to determine whether the defendant was sane or insane. He testified further that the adequacy of any psychological examination would depend on the training of the examiner and the sufficiency of the examination, and that an adequate examination would require two to three hours, which would include talking to the person and giving him psychological tests. In his opinion an examination such as that given by the County Health Officer did not give an adequate indication of the person's mental state, other things being necessary to consider. No other evidence bearing on the defendant's sanity at the time of the alleged crime or at the time of the trial was made available by the State to defendant or his counsel and no other medical testimony was introduced.

The Texas Court of Criminal Appeals affirmed petitioner's conviction on January 3, 1962, 172 Tex.Cr.R. 54, 353 S.W.2d 855, and on February 14, 1962 denied rehearing, specifically rejecting petitioner's claim that the Fourteenth Amendment to the Constitution of the United States gave him the right to some form of psychiatric assistance.

On October 15, 1962 the Supreme Court of the United States granted certiorari to review petitioner's conviction, 371 U.S. 859, 83 S.Ct. 123, 9 L.Ed.2d 98. On February 23, 1963 the State of Texas filed a supplemental brief in the United States Supreme Court in which it put before the Court a report of Dr. Adolf Hug, a psychiatrist chosen by the State to examine petitioner. Dr. Hug's report stated that petitioner suffered from simple schizophrenia and that he "was only partly or not at all responsible for his acts, for very many years."

At the oral argument before the United States Supreme Court the Assistant Attorney General of the State of Texas stated that if the case was sent back to the Court of Criminal Appeals his personal position, speaking as Assistant Attorney General of Texas, was that Bush should be granted a new trial. On March 25, 1963 the United States Supreme Court vacated the judgment of the Texas Court of Criminal Appeals and remanded the case "for consideration in light of subsequent developments." The Court did not pass on the question of denial of due process declaring, "Appropriate federal-state relations and proper regard for state processes require that Texas' highest criminal court be afforded the opportunity to pass upon the case with these later developments before it." Bush v. Texas, 372 U.S. 586, 83 S.Ct. 922, 9 L.Ed.2d 958.

The mandate of the Supreme Court of the United States issued on April 19, 1963 and was received by the Texas Court of Criminal Appeals on April 23, 1963. On April 24, 1963 the Texas Court of Criminal Appeals entered an order in which it took note of the action of the Supreme Court and further outlined the statutory manner whereby defendant's sanity may be judicially determined while an appeal is pending in the Texas Court of Criminal Appeals. The Court in its order stated that "final disposition of this appeal would await filing of further motions, briefs and certification as to `subsequent developments' referred to in the Supreme Court's opinion." Bush v. The State of Texas, Tex.Cr.App., 372 S.W.2d 683.

On July 22, 1963 a trial was held in the District Court of Ellis County on the issue of defendant's sanity at the time of the hearing and also on the date respectively of the alleged offense and of the main trial. The trial was purportedly held under the provisions of Sec. 3, Art. 932b, Vernon's Ann.C.C.P. Defendant made various motions to postpone, to protest the sanity hearing, to grant a new trial and for various findings by the Court. All were denied.

The record on the sanity hearing reflected that defendant was transferred to the Rusk State Hospital on February 21, 1963, and received psychiatric treatment for a period of 89 days. On the July 22, 1963 sanity hearing two psychiatrists and a general practitioner who had examined defendant, testified for the State that in their opinion defendant was sane. Defendant's counsel did not cross examine and did not adduce any testimony. The jury found defendant sane on October 21, 1960, on April 25, 1961 and on July 22, 1963, the dates of the alleged criminal act, the trial and conviction, and the sanity hearing, respectively.

On November 27, 1963 the Court of Criminal Appeals affirmed the judgment of the trial Court.

On March 2, 1964 petitioner filed his petition in this court asking for the issuance of a writ of habeas corpus to discharge him from the custody of the Sheriff of Ellis County unless he be given a new trial on the offense for which he was convicted and held in custody.

Since petitioner has exhausted his remedies in the state court and since a federal constitutional question is involved, petitioner may seek federal redress pursuant to Section 2241 et seq., Title 28 U.S.C.A.

The petitioner, Bush, having been found of unsound mind in 1924 and that judgment not having been set aside, the State had the burden of proving his sanity beyond a reasonable doubt at the time of the commission of the offense. Herring v. State, 141 Tex.Cr.R. 281, 148 S.W.2d 416.

To discharge its burden, the State relied at the insanity hearing prior to the trial and at the trial on the merits on the testimony of three lay witnesses and of the county medical officer.

While the testimony of lay witnesses was admissible, such was not a sufficient basis for a finding that Bush was of sound mind. Article 1, Section 15-a of the Texas Constitution, Vernon's Ann.St., provides that "No person shall be committed as a person of unsound mind except on competent medical or psychiatric testimony." While this provision of the Constitution relates to civil actions, there is even more reason to hold lay evidence insufficient in a criminal case to send a man to the penitentiary for life. Wright v. United States, 102 U.S.App.D.C. 36, 250 F.2d 4; Fielding v. United States, 102 U.S.App.D.C. 167, 251 F.2d 878; Douglas v. United States, 99 U.S.App.D.C. 232, 239 F.2d 52. In each of these cases the Court held testimony by government lay witnesses was not sufficient to uphold a jury conviction in the face of evidence of insanity from psychiatrists.

The testimony of the County Medical Officer was likewise insufficient. Dr. Compton was a general practitioner. He testified that his training included psychiatry, but that he had had no specialized training in that branch of medicine. In his practice he stated that he treated patients with a mild emotional problem, but that those with more difficult problems he referred to a specialist.

A doctor, with such training and experience, is not factually competent to give an opinion as to sanity. While this view has not always been recognized by the courts, recent cases reflect a changing attitude. Krupnick v. United States, 8 Cir., 264 F.2d 213.

In the Krupnick case the petitioner sought to have his sentence vacated under 28...

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