Hixon v. State, 4151

• Decision Date: 17 June 1964
• Docket Number: No. 4151,4151
• Citation: 165 So.2d 436
• Parties: Charles HIXON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 436

165 So.2d 436

Charles HIXON, Appellant, v. STATE of Florida, Appellee.

No. 4151.

District Court of Appeal of Florida, Second District.

June 17, 1964.

P. B. Howell, Jr., Leesburg, and T. R. Champion, Mount Dora, for appellant.

James W. Kynes, Atty. Gen., Tallahassee, Robert G. Stokes, Asst. Atty. Gen., Lakeland, for appellee.

KANNER, Judge (Ret.).

Charles Hixon, an escapee from the Athens State Hospital in Ohio, was convicted by the jury for first degree murder of his divorced wife, Lucille Lively and, consequent upon the jury's recommendation of mercy, was sentenced by the court to be confined to the custody of the Department of Correction for the rest of his life.

The narrative which unfolds through the record reveals that a sequence of pertinent events antedating the homicide began on May 12, 1958, in Ironton, Ohio, when Hixon, a television and radio repairman by trade, was adjudged mentally ill by the probate judge of Lawrence County, Ohio, who heard testimony of his wife, Lucille, and of two medical witnesses. He was committed to the Athens State Hospital on May 15, 1958, where, according to the hospital records, a diagnosis of schizophrenic reaction, paranoid type, was made. On June 29, 1958, Hixon was permitted with some reservations to go to his mother's home for a trial visit of four weeks; there was the notation, 'He does not have any privileges at the present time.' On July 5, the hospital received a letter from Hixon's mother sayng that he would not cooperate in taking his medicine, that he talked about his wife all the time, that he was doing the same thing as before, and that his wife had had him locked up. He was returned to the hospital and place in another ward for further care. On July 17, he escaped from the ward while out on recreation and was never returned to that hospital.

Lucille Lively, meanwhile, had divorced Hixon and had moved to Leesburg, Florida. Hixon, after his escape, left for Florida sometime in early November, 1958. While waiting for a bus in Orlando, he noticed a newspaper advertisement of a pistol for sale and purchased it, along with cartridges, then caught a bus for Leesburg. On the afternoon of November 10, 1958, he observed Lucille Lively with her stepmother on a downtown street in Leesburg, approached her, exchanged greetings with the two, and a short conversation ensued:

'What did you send for me for, Lu?'

'I never sent for you.'

'You sent two cards sending for me to come to Leesburg.'

'I never sent for you. I am going to get married Christmas.'

'Who to, Red?'

'I don't know anyone by the name of Red.'

Thereupon, Hixon took his pistol from his pocket, shot Lucille until she fell, face down, then stooped and, holding the pistol to her head, shot again. He departed the scene at a rapid rate, waving the pistol in the air. Pursued by an off-duty police officer, Hixon took refuge under a house and was later forced out by officers using tear gas.

Hixon was placed in the county jail in a cell separate from the other prisoners. Upon motion for insanity hearing and determination filed by court-appointed counsel, he was transported to the Florida State Hospital at Chattahoochee on April 1, 1959, with Doctors Cronick and Eaton of the medical staff being ordered to examine the prisoner and make a report. By order of July 1, 1959, the court adjudged him 'in fact insane and incompetent to conduct his defense' upon the basis of the report of Doctors Cronick and Eaton which had been made under date of May 12, 1959; and Hixon was committed to the Florida State Hospital for care and treatment. On Septmeber 28, 1962, the hospital filed a competency discharge. As the result of a hearing at which Doctors Vaughn and Newman, court-appointed psychiatrists, testified, Hixon on February 5, 1963, was by the court found 'sane enough' to stand trial.

There is no contention that the homicidal deed here involved was not perpetrated by Hixon, but his defense is that he is not guilty by reason of insanity. The position which he asserts on the appeal is that he, as defendant, established his insanity prior to the homicide and continuing to and during the time of that deed; that the state thus became burdened with a presumption of his continuing insanity which it was required to overthrow by competent evidence establishing his sanity at the time of the act in question; and that the state failed to meet this obligation. The state, opposing, contends that the evidence effectively proved that Hixon knew right from wrong at the time of the shooting. We agree with the position assumed by the defendant.

One cannot be held legally responsible for an act committed by him while insane, although the act would be criminal if done by a sane person. Sanity is the normal condition of man; and, when charged with a crime, he is presumed to be sane. The mere fact that a person has committed a crime is not sufficient to overcome this presumption, but he has the burden of establishing his plea of insanity by showing that he was legally insane at the time he committed the act in question. The exclusive rule recognized in Florida is the 'right and wrong' test, also referred to as the M'Naghten rule, for determination of the sanity of an accused. This rule prescribes essentially ant if an accused was possessed of sufficient understanding at the time he committed the act to know what he was doing and knew that it was wrong, he is responsible for the act; if, on the other hand, he did not know the nature and quality of the act he was committing or did know what he was doing but did not know that it was wrong, he is not responsible for his act. Camp v. State, Fla.App.1963, 149 So.2d 367. The Florida jurisdiction since early times has recognized the tenet that 'Where insanity of a permanent type, or of a continuing nature, or possessed of the characteristics of an habitual or confirmed disorded of the mind, as distinguished from temporary or spasmodic mania, or disorders of mind produced by the violence of disease, is shown to have existed a short time prior to the commission of an ace, it is presumed to continue up to the time of the commission of the act, unless this presumption is overcome by competent testimony.' Armstrong v. State, 1892, 30 Fla. 170, Syllabus by the Court, paragraph 4 of 11 So. 618, 626, 627, 17 L.R.A. 484; Thomson v. State, 1919, 78 Fla. 400, 83 So. 291.

Also, one who has been adjudged insane is presumed to continue so until it is shown that sanity has returned. The presumption arising from the adjudication is not conclusive, however, but may be over come by proof that the accused was of sufficiently sound mind and conscience at the time he committed the crime to realize the character and consequences of his act. Wells v. State, Fla.1957, 98 So.2d 795; Corbin v. State, 1937, 129 Fla. 421, 176 So. 435.

The defense relied upon hospital records, expert medical testimony, and records of the official proceedings. Tha state offered no medical testimony but presented only lay witnesses. In order to bring the evidentiary picture into chronological perspective, we begin by reviewing the Athens State Hospital records and then the expert testimony, some of which relates to Hixon's mental condition while he was in that institution.

The diagnosis at the Ohio hospital, as we have pointed out, was that of schizophrenic reaction, paranoid type. Hospital records made on Hixon's admission indicate that, by the medical certificate, Lawrence County Probate Court commitment, the onset of the attack had been gradual; the patient was described as...