Jessup v. Commonwealth

• Decision Date: 14 October 1946
• Citation: 39 S.E.2d 638,185 Va. 610
• Court: Virginia Supreme Court
• Parties: JESSUP. v. COMMONWEALTH.

39 S.E.2d 638

185 Va. 610

JESSUP.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Oct. 14, 1946.

Error to Circuit Court, King William County; J. Douglas Mitchell, Judge.

Thomas Jessup was convicted for housebreaking and grand larceny, and he brings error.

Reversed and remanded.

Before HOLT, C. J., and HUDGINS, GREGORY, EGGLESTON, and SPRAT-LEY, JJ.

W. A. Hall, Jr., of Richmond, for plaintiff in error.

Abram P. Staples, Atty. Gen., and W. Carrington Thompson, Asst. Atty. Gen., for the Commonwealth.

SPRATLEY, Justice.

Thomas Jessup was indicted on October 15, 1945, for housebreaking and grandlarceny committed during the night of September 10-11, 1945. Virginia Code 1942, (Michie), sections' 4439, 4440. On October 29, 1945, a question being raised as to the mental condition of the accused, he was, by order of the trial court, committed to the Eastern State Hospital, Williamsburg, Va., for observation as to his mental condition. Virginia Code 1942, (Michie), section 4909. The Superintendent of the Eastern State Hospital, Dr. Joseph E. Barrett, under date of November 26, 1945, reported in writing to the court that in his opinion, as well as that of the entire staff of the hospital, Jessup was "not insane."

On December 4, 1945, on his plea of not guilty, Jessup was tried. Under this plea the issue was raised that the accused was feeble-minded and, therefore, not criminally responsible for the offense charged against him. The jury, however, found him guilty and fixed his punishment at 6 years confinement in the penitentiary. A motion to set aside the verdict of the jury was continued to December 14, 1945, and on that date was overruled. The trial judge, on December 21, 1945, sentenced the accused to 6 years in the penitentiary, but in the same order, qualified the sentence as follows: "and it appearing to the court that the prisoner is of low mentality, it is ordered that in lieu of serving said sentence in the State penitentiary that he be committed to the criminal department of the Southwestern State Hospital, Marion, Virginia, to be received, kept and treated in said hospital according to law."

The evidence, without contradiction, clearly and conclusively shows that Thomas Jessup, acting in concert with three other young men, on the night of September 10-11, 1945, broke and entered a garage building at West Point, Va., and stole therefrom a large sum of money and other personal property of considerable value. Two of his accomplices, who had theretofore pleaded guilty and had been sentenced to the State penitentiary, testified in detail that Jessup actively participated in the crime and shared in the stolen loot. Jessup did not testify.

On the issue of the mental capacity of Jessup, Dr. Joseph E. Barrett, Superin tendent of the Eastern State Hospital, was called as a defense witness. It developed that on November 28, two days after his official report to the court that Jessup was "not insane, " Dr. Barrett wrote a letter to the trial judge which reads as follows:

"Re: Thomas Jessup.

"Dear Judge Mitchell:

"I filed my official report of observation in the case of the above named with the Clerk of the Court. I felt, however, it might be well for me to write you personally regarding him, giving information which cannot necessarily be included in the official report.

"Thomas Jessup has been a patient in this hospital on a previous occasion, namely, 1936, when he was committed here on court order for observation.

"He was not considered to be insane at that time nor is he considered by us to be insane. We have, however, made rather extensive studies of him and I believe the most significant finding is he is definitely feeble minded. We have made formal psychiatric examinations of his intelligence and find him to have a mental age of 8 years and 8 months, and an IQ of 58.

"During the entire time he has been under observation here he has not shown any evidence of mental abberation and has been able to conduct himself in a satisfactory manner in accordance with his intelligence."

Dr. Barrett testified that Jessup had been formerly committed to the Eastern State Hospital on November 4, 1936, and had been discharged therefrom on February 13, 1937, upon a report which bore the recital: "Diagnosis, mental deficiency, imbecile---not insane." He also referred to a report made December 17, 1936, by a former Superintendent of the same hospital to the Judge of the Circuit Court of Chesterfield County, Va. In that report it was stated that Jessup was "not insane" but an imbecile and had the type of mentality that could be easily persuaded for good or bad and that it would be necessary to keep him well fed and free from anti-social groups. In Dr. Barrett's opinion, Jessup knew right from wrong, and had sufficient intelligence to plan and break in a garage and not todrive a car while drunk, yet he was mentally defective and feeble-minded to a serious degree. Dr. Barrett said it was not safe to allow Jessup to go at large unless he had "very constant supervision and guidance, and by some one who understands him and is willing to assume that responsibility." He admitted that he was in error in not having his report state that Jessup was feeble-minded.

Immediately after overruling the motion to set aside the verdict as contrary to the law and the evidence, the trial judge expressed the following opinion:

"On account of the boy being feebleminded there is a question as to whether I should send him to the penitentiary, or send him to the Penal Department of the Feebleminded.

"To be frank with you, in all due respect and deference to Dr. Barrett, I don't understand why he did not state that in his official report that the accused was feeble minded instead of writing me a personal letter. Be that as it may, when the Doctor has made an official report to me stating one thing, and a letter to me personally stating that he is feeble minded, and comes on the stand and says he is definitely feeble minded, the Court must take into consideration that this boy has a mind of a child $ years and 8 months, from the Doctor's statement. Whether I should send him to the Criminal Department of the Feeble Minded rather than send him to the Penitentiary the Court is not advised at this time. Of course I can send him to the Penitentiary. Mr. Sutton has asked Mr. Hall a very pertinent question, as to which he would prefer, because I am going to send him to one or the other, that is to say the penitentiary or the Penal Department for the Feeble Minded at Marion, Virginia.

"The boy is feeble minded. There is no question about that, judging from his personal appearance and from the appearance of his sister, Annie, who was on the stand."

The defendant makes numerous assignments of error. His principal assignments are, however, that the evidence established "the incapacity" of the defendant to commit the crime, and that the trial court was "without jurisdiction" to commit the defendant to the Southwestern State Hospital.

The Attorney General concedes that there is no warrant of law for the substituted sentence imposed on the defendant. He suggests that the invalid sentence be set aside and the case remanded to the trial court for the imposition of a sentence in accordance with the verdict of the jury.

The trial court gave four instructions at the request of the Commonwealth and five at the request of the defendant. There were no objections to any of the instructions. All of the instructions, save one, related to the trial of a normal person for the offense in question. The only one which dealt with the mental capacity of the accused read as follows:

"The Court instructs the jury that there are 2 theories, one advanced by the Commonwealth that the accused has...