In re Smith.

• Decision Date: 04 December 1918
• Docket Number: No. 2154.,2154.
• Citation: 25 N.M. 48,176 P. 819
• Parties: In re SMITH.
• Court: New Mexico Supreme Court

25 N.M. 48

176 P. 819

In re SMITH.

No. 2154.

Supreme Court of New Mexico.

Dec. 4, 1918.

Syllabus by the Court.

Chapter 70, Code 1915, which provides for the issuance by a district judge of a commission in the nature of a writ de lunatico inquiriendo to inquire into the lunacy or habitual drunkenness of any person within this state, or having real or personal estate therein, has no application to a person in the custody of the law awaiting execution for a capital offense or as to a convict undergoing imprisonment for crime. Said statute was enacted solely for the purpose of protecting the civil and property rights of insane persons and habitual drunkards and for the care of indigent persons by the various counties. Hence an adjudication by a district court under such statute that a person who has been tried and convicted for the crime of murder and sentenced to death is a person of unsound mind is void, and does not hvae the effect to stay the execution.

The common law forbids the trial, sentencing, or execution of an insane person for a crime while he continues in that state. Where a person has been convicted of a crime and sentenced to death, and, pending the execution, a suggestion is made to the court so passing sentence that the accused has become insane, and the court is satisfied from such suggestion that there is a question as to the sanity of such party, the court will, as a matter of humanity, make such investigation as may be necessary to become informed as to the sanity or insanity of such party.

The court has the power to grant a stay of execution in such a case for the purpose of enabling it to inquire into the sanity of one about to be executed.

The trial of the question of the sanity of a convict, suggested after the verdict and sentence, is at common law in the discretion of the judge, without an absolute right on the convict's part to have the issue tried before a court and a jury. In this jurisdiction, there being no statute upon the subject, it is within the province of the court, upon the suggestion of the insanity of one awaiting execution under a death sentence, to adopt such method as to the court seems best suited to enable it to arrive at the truth of the question.

The test of the question as to whether one about to be executed is sane or insane is whether or not such person, at the time of the examination, from the defects of his faculties, has sufficient intelligence to understand the nature of the proceedings against him, what he was tried for, the purpose of his punishment, the impending fate which awaits him, and a sufficient understanding to know any fact which might exist which would make his punishment unjust or unlawful, and the intelligence requisite to convey such information to his attorneys or the court. If he has, then he is sane; otherwise he is insane, and should not be executed.

Evidence examined, and held, that petitioner is now sane within the rule above stated, and that his execution should not be further stayed.

A. B. Smith, alias Dashley, petitioned the Supreme Court to stay the execution of his sentence to death after conviction of murder until he should be restored to his reason. Stay denied.

The court has the power to grant a stay of execution in such case for the purpose of enabling it to inquire into the sanity of one about to be executed.

A. M. Edwards, of Santa Fé, for petitioner.

Harry Patton, Atty. Gen., and C. A. Hatch, Asst. Atty. Gen., for the State.

ROBERTS, J.

Petitioner, A. B. Smith, alias Dashley, was tried and convicted in the district court of Dona Ana county of murder in the first degree, and was sentenced to be hanged. He appealed to this court, and on the 15th day of July, 1918, the judgment of the district court was affirmed (State v. Smith, 174 Pac. 740), and a new judgment was entered in this court sentencing the petitioner as required by law and directing that the sentence be executed on the 13th day of August, 1918. Thereafter the Governor of the state granted said petitioner a reprieve until the 25th day of October, 1918. The petitioner was removed from the jail of Dona Ana county and placed in the state penitentiary at Santa Fé for safekeeping, and has been confined in the penitentiary continuously since the judgment was entered in the district court of Dona Ana county. On the 10th day of August, 1918, there was issued out of the district court of Santa Fé county a writ de lunatico inquiriendo under the provisions of chapter 70, Code 1915, to inquire into the sanity of said Smith, alias Dashley, and upon such inquiry it was adjudged and decreed by judgment of said court that said Smith, alias Dashley, was a person of unsound mind. On the 18th day of October, 1918, petition was filed by said Smith in this court setting up such adjudication and the further fact that said Smith, alias Dashley, was at such time a person of unsound mind, and asking this court to stay the execution of such sentence of death until said petitioner should be restored to his reason. At the same time this court heard evidence of four physicians as to the sanity or insanity of the petitioner, and the evidence of the warden and assistant warden of the state penitentiary, and, not being advised as to the law in the premises or sufficiently informed as to the facts, an order was entered staying the execution of said sentence until the 29th day of November, 1918. Subsequently a further stay was granted until the 17th day of December, 1918.

At the time of filing the petition, petitioner requested the court to hear evidence and to grant him a stay of execution and further time in order that he might have the opportunity of taking the depositions of some witnesses in other states as to his alleged insanity. He also filed objections to the court hearing evidence on the question, claiming that the result of the investigation conducted by the district court of Santa Fé county was binding and conclusive upon this court. He further moved, in the event the court decided to conduct an investigation, that he be allowed the right to a jury trial upon the question of his sanity or insanity. On the 25th day of November, 1918, the court heard further evidence upon the question of the alleged insanity of the petitioner and argument of counsel upon the various questions of law and questions of fact presented.

[1] The first question logically arising for consideration is as to the effect of the adjudication by the district court of Santa Fé county that petitioner was insane at the time of the hearing in said court. In this connection it is perhaps advisable to say that at the trial upon the indictment in the district court of Dona Ana county insanity was not interposed as a defense. The investigation by the district court of Santa Fé county was instituted and conducted under the provisions of chapter 70, Code 1915. The first section (3378) provides:

“It shall be lawful for any district judge in this state to issue a commission, in term or vacation time in the nature of a writ de lunatico inquiriendo, to inquire into the lunacy or habitual drunkenness of any person within this state, or having real or personal estate therein. Such commission shall issue in the county in which such person, who is alleged to be a lunatic or habitual drunkard, shall be or reside for the time being. If such person shall be absent from the state, the commission shall issue in the county wherein he last had his residence, or in which his property is situated, and shall be executed therein.”

Section 3379 provides the form of the commission; section 3380 has to do with the petition upon which the inquiry is instituted; and sections 3381 to 3386, inclusive, provide the manner of conducting the investigation. The contents of these sections need not be stated, and it is sufficient to say that the hearing was conducted in conformity with the provisions of such sections. Section 3387 reads as follows:

“It shall be lawful for the court, after the return of the inquisition as aforesaid, notwithstanding any traverse of the same that may be pending, to make such orders touching the care and custody of the person, and the management and safe-keeping of the estate of any person, so found to be a lunatic or habitual drunkard, as it shall think necessary and proper.”

Section 3388 provides for the appointment of a committee. Section 3393 reads as follows:

“The committee of said person found to be a lunatic or habitual drunkard, shall have the management and control of his person and estate, and shall from time to time apply so much thereof as may be necessary for support and maintenance of himself and family, and for the education of his minor children.”

Section 3406 reads:

“Whenever, under a provision of this chapter, a person is found, upon inquisition to be a lunatic or habitual drunkard, and neither himself nor his friends have sufficient personal or real estate for the maintenance of said lunatic or habitual drunkard, he shall be supported at the expense of the county of which he is a resident; but the committee of such poor lunatic or habitual drunkard, shall in all respects conform to the provisions of this chapter.”

The remaining sections of the chapter have to do with the management of the estate, reports to the court, etc.

The attorney general contends that this chapter has no application to a person in the custody of the law awaiting execution for a capital offense, or as to a convict undergoing imprisonment for crime, but that it was enacted solely for the purpose of protecting the civil and property rights of insane persons and for the care of indigent persons by the various counties. The statute was enacted in 1856, long prior to the establishment of the New Mexico Insane Asylum by the Legislature in 1889. With this contention of the Attorney General we agree. There is nothing in the statute showing that it was intended to have any application whatever to persons in the...