Farris v. Com.

• Decision Date: 14 October 1968
• Citation: 163 S.E.2d 575,209 Va. 305
• Parties: Albert Wesley FARRIS, Jr. v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 575

163 S.E.2d 575

209 Va. 305

Albert Wesley FARRIS, Jr. v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

Oct. 14, 1968.

Bernard J. Natkin, Lexington, for plaintiff in error.

D. Gardiner Tyler, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on the brief), for defendant in error.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON and HARRISON, JJ.

I'ANSON, Justice.

Albert Wesley Farris, Jr., defendant, was indicted for rape of his seven-year-old daughter, Vicki Lynn Farris, on November 14, 1961. Farris being without funds to employ counsel of his own choosing, the trial court appointed two attorneys to represent him. Defendant pleaded not guilty on the ground of insanity. A jury found him guilty as charged in the indictment, fixed his punishment at confinement in the State penitentiary for life, and he was sentenced accordingly on February 12, 1963. We entertained defendant's delayed petition for an appeal and granted him a writ of error to the judgment.

Defendant assigns several errors, but we think that the crucial and controlling question presented is: Whether the trial court erred in allowing an expert medical witness to testify on cross-examination as to what the defendant's conduct might be in the future.

The evidence shows that Vicki Lynn Farris was raped on November 14, 1961, and there was testimony from which the jury could conclude that the defendant committed the offense.

Dr. John G. Novak, a psychiatrist called as a witness for the defendant, testified that at the time of the alleged criminal act defendant was suffering from acute brain syndrome, alcoholic intoxication with amnesia that it was highly probable that he had done some things that he had no recollection of doing; and that, as a consequence, it ws highly probable that he did not know the difference between right and wrong at the time the offense was committed.

On cross-examination, the attorney for the Commonwealth asked Dr. Novak the following questions:

'Q. Now, Dr. Novak, I believe you have diagnosed his mental condition as being acute brain syndrome with amnesia. Would you describe or identify it as a mental disease of transcient nature?

'A. Yes, sir.

'Q. What does the word transient mean?

'A. It's self-limiting in a sense. It begins, progresses, and then stops. It can be repeated and can recur.

'Q. It can recur?

'A. It can recur, yes.

'Q. If this man were released to society, and if he became intoxicated again, would he be a potential danger as a sex--?'

Defendant's counsel objected to the question and the trial court, without expressly ruling on the objection, said to the attorney for the Commonwealth, 'I believe you might ask him if he might return to the same condition that he had testified that he feels that he was in at the time of the alleged offense. Let's put it that way.' Objection was again made on the ground that what defendant might do in the future was not a proper subject of inquiry.

The trial court, nothing defendant's exception, and having suggested the language of a re-phrased question, allowed Dr. Novak to be asked:

'* * * in the event that the defendant, Albert Wesley Farris, Jr., would, on some subsequent date in the future, indulge in the use of alcohol to the extent that you were advised he did on November 14, 1961, would his condition then be the same as you state his condition to be on November 14, 1961?

'A. I believe this man is ill. I believe that my diagnosis is a manifestation of his illness, his underlying illness. And, under the circumstances, I believe the same thing could possibly recur.'

Evidence of other acts of an accused, whether criminal or not, both before and after the act for which the accused stands criminally charged, are admissible into evidence when the accused has pleaded not guilty by reason of insanity if such prior and subsequent acts are relevant to his mental state at the time the crime was committed. See, 2 Wigmore on Evidence, 3d ed., 1940, §§ 227, 228, pp. 8, 9; 29 Am.Jur.2d, Evidence, § 353, pp. 402, 403, and the cases there collected. Cf. Nugent v....