Harvey v. State, 44669

Decision Date19 February 1968
Docket NumberNo. 44669,44669
PartiesJohnny Benjamin HARVEY v. STATE of Mississippi.
CourtMississippi Supreme Court

Evans & Sykes, Gulfport, for appellant.

Joe T. Patterson, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., Jackson, for appellee.

RODGERS, Justice:

The appellant, an eighteen-year-old boy was indicted, tried and convicted of the crime of 'fondling.' He was sentenced to serve a term of one year in the Mississippi State Penitentiary; and from this judgment and sentence imposed in the County Court of Harrison County, Mississippi, he has appealed to this Court.

It is not seriously contended that the defendant did not do the acts or commit the assault alleged to have been committed upon the person of Alberta Walker, a four-year-old female child. The mental responsibility of the defendant for the crime charged and defendant's mental capacity to give a written confession are the two real issues to be determined on this appeal.

During the trial the prosecution offered the testimony of the prosecutrix and other corroborative evidence, and in the absence of the jury the State offered a written confession of the defendant. The court admitted the confession over the objection of the defendant, and the evidence of the confession was then presented to the jury. The defendant declined to offer proof as to the voluntariness of the confession in the absence of the jury. During the testimony of the State, on the question of voluntariness, to the trial judge, the defendant stressed the question as to whether or not the defendant fully understood that he was waiving his constitutional right to have an attorney present during the inquiry, and whether or not the prisoner understood the gravity of the crime with which he was being charged. The officers testified that the defendant 'naturally was shook up a little bit, excited about it, but he did not hesitate when we explained his rights to him to go ahead and tell us. He did not want a lawyer, he didn't want to call a lawyer, and that he would give us a statement and sign the statement.' The officers said, 'He was more than willing to give us a statement for at the time he appeared like he didn't think there was nothing to it, nohow.'

After the State had rested its case, the defendant offered the testimony of a psychiatrist who testified that the defendant was moderately mentally defective, but without psychosis or true mental disease. He testified that the defendant did not have sufficient capacity to distinguish right from wrong on the date of the alleged crime. He testified that the defendant would be a 'menace to society' and that his deficiency is such that he is not sufficiently aware of right and wrong and would have a 'good chance' of repeating the crime. He testified that he did not believe that the defendant had mental capacity to understand completely what he signed.

A psychologist testified that the defendant had a general intelligence quotient of 60, and that:

'This would indicate that he is right on the line between mild-mental-retardation and moderate mental-retardation, in other words, the score that he obtained on the test would indicate that he is in the category of the mild to moderate mental defective.'

The doctor further stated that the defendant was suffering from 'brain disfunction' or 'brain damage'; and:

'(W)hen he is feeling good and he is in a secure environment, he can function like an eleven or twelve-year-old boy which is really fairly intelligent. * * * (B)ut when he is upset, the efficiency of his thinking drops down to the severe mentally retarded and he could not handle anything. He couldn't even sweep a room out if he was upset.'

The doctor testified that he had a mental age of eight to nine or ten to eleven years of age, and that he would not be able to maintain the mentality of an eleven-year-old. He said, however, that the defendant was not psychotic, neither schizophrenic nor depressive, that he did not have enough mentality to be psychotic. Finally the doctor said that when this patient was worried he had the mind of a five-year-old child.

The testimony in this record shows that the defendant finished the eighth grade in school; however, his teacher testified that he was not capable of passing but that he was passed 'socially but not academically'. Some of the witnesses testified that the defendant crawled through windows when he visited them and others testified that he always had a pack of 'alley dogs' following him.

The grandmother of the prosecutrix testified that the child changed her story as to the alleged assault. The State in rebuttal offered officers and lay witnesses to testify as to their opinion with reference to whether or not the defendant was sane. A psychiatrist was permitted to give his opinion based upon a hypothetical question giving the history of evidence introduced in the case, and this witness testified that assuming that testimony to be true, the defendant knew the difference between right and wrong at the time of the alleged assault. During the trial it was stipulated that the defendant had been admitted to the Mississippi State Hospital at Whitfield, where he was examined by the staff of psychiatrists. The report of the hospital authorities was introduced into evidence by agreement, and on order of the court. The report stated that the patient was found to be without psychosis. The entire record of the hospital was introduced showing the questions and answers which occurred between the doctors and the defendant.

The trial court was requested to grant, but would not grant, the defendant an instruction based upon the lack of capacity to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of law.

I.

The appellant challenges the adequacy of the current test being used in this state as a guide by which the jury may determine the criminal responsibility of persons charged with crimes. It may be helpful to review the history of this problem.

All civilized society from early antiquity has recognized that in order to hold persons responsible for crime it was necessary for such person to have sufficient mental understanding to form a criminal intent. This rule was known as 'actus non reum facit nisi mens sit rea,' which means: An act does not make a person guilty unless his intention be also guilty. It is often referred to in textbooks as the 'mens sit rea' rule. Children, of course, were exempt because they obviously did not understand the consequence of their acts. It was pointed out by Dr. Dearman in his article on criminal responsibility printed in 47 Virginia Law Review 1388, 1389 (1961):

'The question of mens rea, or 'guilty mind,' has been a problem with which medicine and the law have been struggling almost since the beginning of recorded history. It was first mentioned as a legal principle in the Code of Hammurabi, which was written about 1790 B.C. In this Code if one man killed another and swore that it was unintentional, he was merely fined according to the rank of the deceased.

'The early record of insanity as a defense occurred in Mohammedan law about 622 A.D. In this Code there was no concept of demoniacal possession as the cause of mental illness. Here for the first time a slaying committed by a person who was mentally ill was considered involuntary homicide.'

The trial judges from an early date began to exempt from criminal punishment not only children but adult persons who were idiots, mental deficients or insane persons, because they too were unable to understand or form a criminal intent. Many of the great English judges and English law writers wrote on this subject. Coke, Hale, Blackstone and others have written upon the subject of madmen, non compos mentis, and dementia. In 1724 A.D. in the English Arnold's Case, 16 How.St.Tr. 695, Justice Tracy announced the 'wild beast' test for legal sanity by saying:

'(I)t must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute or wild beast. Such a one is never the object of punishment.'

In Arnold's case, the court also used the phrase 'able to distinguish between good and evil.'

In 1800 Hadfield shot at King George III of England in Drury Lane Theater. The attorney general prosecuted the case and insisted upon the old test, 'the total deprivation of understanding and memory.' The defense counsel, Erskine, insisted that insanity was to be determined by the fact of fixed insane delusions. The defendant was acquitted, and since that time the term, 'the delusion test,' has been referred to by many courts. 1 Burdick, Law of Crime § 209 (1946).

The 'fixed insane delusion test' of sanity was pled in the famous M'Naghten's Case, 10 Clark & F. 200, 8 Eng.Rep. 718 (1843). In 1843 M'Naghten, a Scotchman, was tried for the murder of Mr. Drummond, a private secretary of Sir Robert Peel. He was under the insane delusion that Peel had injured him and believed Drummond to be Peel. He killed him. He was acquitted on the ground of insanity. The public was very much aroused. There was a long debate in the House of Lords resulting in there being submitted to the English Judges five questions, two of them being what issues should be submitted to a jury when a person is afflicted with insane delusions, and in what terms ought the question be left to the jury as to the prisoner's state of mind at the time the act was committed. Chief Justice Tyndall wrote the reply for the fifteen Judges of England:

'As the second and third questions appear to us to be more conveniently answered together, we submit our opinion to be that the jury ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction. That, to establish a defense on the ground of insanity, it must be clearly proved...

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