Downs v. State

• Decision Date: 21 December 1959
• Docket Number: No. 4954,4954
• Citation: 231 Ark. 466,330 S.W.2d 281
• Parties: Curtis John DOWNS, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 281

330 S.W.2d 281

231 Ark. 466

Curtis John DOWNS, Appellant, v. STATE of Arkansas, Appellee.

No. 4954.

Supreme Court of Arkansas.

Dec. 21, 1959.

Rehearing Denied Jan. 18, 1960.

Norris Webb, Monette, Penix & Penix, Jonesboro, for appellant.

Bruce Bennett, Atty. Gen., Russell J. Wools, Asst. Atty. Gen., for appellee.

WARD, Justice.

Appellant, Curtis Downs, being charged with the crime of robbery, was tried, convicted, and sentenced by the trial court to 18 years in the penitentiary. Upon appeal appellant does not seriously challenge the sufficiency of the evidence to support the conviction.

There is substantial evidence in the record to show that appellant entered the Farmers' State Bank of Jonesboro at Lake City on September 5, 1958, with a gun; that he forced one of the bank employees to place $14,841 in bills belonging to the bank in his brief case; that he left the bank with the money in his car; that he was followed and later apprehended; that he was thereafter identified as the person who robbed the bank; that the amount and description of money mentioned above was found in a brief case in the car which he had been driving.

The able attorneys appointed by the trial court to represent appellant have set out in their brief several assignments of error on which they rely for a reversal. An examination of the motion for a new trial reveals that all assignments of error contained therein are covered by the Points set out in appellant's brief. We proceed now to a consideration of those points.

One. Responsive to appellant's plea of insanity, the trial court gave its Instruction No. 8 which reads as follows: 'The defense of insanity cannot avail in this case unless it appears from a preponderance of the evidence, first, that at the time of the robbery the defendant was under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing; or, second, if he knew it, that he did not know that what he was doing was wrong; or, third, if he knew the nature and quality of the act, and knew that it was wrong, then he was under such duress of mental disease as to be incapable of choosing between right and wrong as to the act done, and unable, because of the disease, to resist the doing of the wrong act which was the result solely of his mental disease'. It is appellant's contention that this court 'should adopt a more realistic test for determining criminal insanity' and, in this connection, it was also contended that the trial court erred in refusing to give appellant's Requested Instruction No. 1. This Requested Instruction reads as follows: 'You are instructed that an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect. Therefore, if you find from a preponderance of the evidence that even though the defendant, Curtis Downs, committed the acts of which he stands accused, if such acts were the product of, or were caused by, a mental disease or a mental defect of Curtis Downs, then you will find the defendant not guilty'.

We have carefully considered several references which appellant makes to certain psychiatric authorities and to what they term the New Hampshire rule promulgated in the case of Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430. Without attempting to pass on the merits of these citations and authorities we feel inclined and bound to follow the rule heretofore announced by our own Court. The instruction given by the trial court in this case, above copied, is set out almost verbatim in the case of Bell v. State, 120 Ark. 530, at page 533, 180 S.W. 186, 195, at page 189. Immediately following the above mentioned instruction the Court, in the Bell case, stated: 'The first and second of the above tests were approved by this court in Casat v. State, supra, (40 Ark. 511) and Williams v. State, supra, (50 Ark. 511, 9 S.W. 5) and the last test was approved in Green v. State, 64 Ark. 523-534, 43 S.W. 973, Williams v. State, supra, Metropolitan Life Insurance Co. v. Shane, 98 Ark. 132, 135 S.W. 836. These tests are in accord with the great weight of modern authority'. We do not find that the above decision has been reversed or modified.

Two. Appellant says: 'The jury should have been instructed that if they acquitted the defendant on the grounds of insanity to so state in their verdict', calling our attention to Ark.Stats. § 43-2135. This section reads: 'If the defense be the insanity of the defendant, the jury must be instructed, if they acquit him on that ground, to state the fact in their verdict'. No such instruction was given by the trial court in this case. If it be conceded that it was error for the trial court to fail to give such instruction it appears to us that it was a harmless error since the jury did not acquit appellant. Moreover, we find that no proper objection and exception was saved. Such being the case there is nothing for this court to review on appappeal on this particular point. See Hicks v. State, 225 Ark. 916, 287 S.W.2d 12; Ford v. State, 222 Ark. 16, 257 S.W.2d 30; and Napier v. State, 220 Ark. 208, 247 S.W.2d 203.

Three. Dr. E. I. Shaw, a psychiatric physician on the staff of the State Hospital at Little Rock, was a witness for the State and gave testimony relative to appellant's sanity as determined in the Hospital staff meetings. Upon being asked how the examination was made Dr. Shaw gave this answer: 'We proceed with interviews with the patient and then you order any ancillary support you need, such as laboratory, X-rays, e. e. g.'s, psychological and neurological examinations, and then you compile all your data, and then you present your case to the staff'.

'Q. Does the whole staff vote on them and render an opinion?

'Mr. Penix: I object.

'A. Yes, sir.

'Mr. Penix: I want to dictate my objection. 'It is a basic precept of American jurisprudence a defendant has a right to confront any witness testifying against him. It is part of the Constitution of this State. It is the worst, rankest kind of hearsay'.

'Court: He may testify as to the method of procedure. As to what any other particular member of the staff did, the objection is sustained'.

Later on Re-Direct Examination of Dr. Shaw the following occurred:

'Q. Then the defendant Downs was actually present at the staff meeting? A. Yes, sir.

'Q. At that staff meeting, how many doctors were present?

'Mr. Penix: I object to that. The Constitution prohibits that.

'Court: Overruled and exception noted to that particular question.

'Q. How many doctors were present? A. 14.

'Q. Did all the doctors there have an opportunity to ask questions and interview this defendant Downs in the presence of all of the 14 doctors? A. Yes, sir.

'Mr. Penix: I object again to this.

'Court: Overruled.

'Mr. Penix: Exception.

'Q. It was your separate diagnosis and the joint diagnosis he was without psychosis? A. Yes, sir.

'Q. If he had needed treatment, you would have asked for a 241 to have him committed, wouldn't you? A. Yes, sir.

'Mr. Penix: I object to leading and asking what the other doctors found, who are not present for cross-examination.

'Court: Overruled.

'Mr. Penix: Exception'.

The essence of appellant's contention on this point appears to be that it was a flagrant violation of the hearsay rule and also a denial of his right to be 'confronted with the witnesses against him' guaranteed under Article 2, Section 10 of the Arkansas Constitution and the U. S. Constitution, Amendment 6, to allow Dr. Shaw to testify with reference to the report compiled by himself and the other members of the Hospital staff. This point was discussed at length and decided against appellant's contention in the case of Nail v. State, Ark., 328 S.W.2d 836. See also Gerlach v. State, 217 Ark. 102, 229 S.W.2d 37 and Leggett v. State, 228 Ark. 977, 311 S.W.2d 521.

Article 2, Section 10, of our Constitution says that the accused shall enjoy the right to be confronted with the witnesses against him. We explained at length in the Nail case, supra, how and why that right is not impaired by Initiated Act 3 of 1936, Section 12, which allows a hospital report or staff report to be introduced, in a sanity hearing, into evidence by the doctor who prepared said report. Since said Section 12 deals with such an important constitutional guarantee of a personal nature every one, particularly this Court, should be on guard to see that this guarantee is protected. Likewise the rule against hearsay evidence is vitally important and should also be protected against inroads by piecemeal. The question can arise then, as it does in this case, as to what safeguards and limitations this Court should place around the introduction of a report which in fact reflects the view and findings of several people. As a general rule it appears fundamental that the witness by whom the report is introduced into evidence should be permitted to testify only to matters within his own knowledge and not to what some member of the staff reported to him concerning the defendant's mental status. On the other hand, we are unable to see how testimony regarding the composition of the hospital board or the procedural methods of the staff, if such testimony is within the personal knowledge of the witness, violates either Article 2, Section 10 of the Constitution or the hearsay rule. This character of testimony is not 'against' an accused. This was apparently the view expressed by the trial court and we think it was correct. Tested by this view we find no reversible error shown by the record set out above. If, as appellant contends here, the State makes improper references to such questioned testimony in its argument to the jury, that raises an entirely different matter which is within the control of the trial judge.

Four. Dr. Shaw, in response to a question, testified that appellant could distinguish between right and wrong. At another time the doctor stated that appellant...