Kenner v. United States

• Citation: 286 F.2d 208
• Decision Date: 21 December 1960
• Docket Number: No. 16576.,16576.
• Parties: John Henry KENNER, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

286 F.2d 208 (1960)

John Henry KENNER, Appellant, v. UNITED STATES of America, Appellee.

No. 16576.

United States Court of Appeals Eighth Circuit.

December 21, 1960.

Charles Clayton, St. Louis, Mo., for appellant.

William C. Martin, Asst. U. S. Atty., William H. Webster, U. S. Atty., St. Louis, Mo., on the brief, for appellee.

Before VOGEL and BLACKMUN, Circuit Judges, and DAVIES, District Judge.

VOGEL, Circuit Judge.

John Henry Kenner, appellant herein, was convicted by a jury on January 19, 1960, on two counts of an indictment involving violations of §§ 4742(a) and 4744 (a), Title 26 U.S.C.A. He was sentenced to imprisonment for a period of five years on the first count and seven years on the second, the sentences to run concurrently. The appeal here is for the purpose of determining whether or not the trial court committed error in the denial of motions under § 4244, Title 18 U.S.C.A., requesting an examination by a psychiatrist and made by appellant through his court-appointed counsel prior to trial. A motion was first made orally before the court on October 16, 1959, when appellant appeared for possible waiver of indictment. Upon reading a Probation Office report, indicating that the appellant had been examined at the Medical Center at Springfield, Missouri, and other places prior thereto, the court denied the motion. On December 4, 1959. appellant again moved for an examination, the motion taking the form of an affidavit made by counsel setting forth that in his opinion there was a definite need for a psychiatrist to determine the question of sanity. Counsel stated, in orally arguing the motion, that:

"But the thing is, I have found him to be incoherent in speech. He has not been able to assist in his defense by giving me even a straight story as to the facts in the case."

The motion was overruled.

Section 4244, Title 18 U.S.C.A., provides that:

"Whenever * * * the United States Attorney has reasonable cause to believe that a person charged with an offense against the United States may be presently insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him or properly to assist in his own defense, he shall file a motion for a judicial determination of such mental competency of the accused, setting forth the ground for such belief with the trial court in which proceedings are pending. Upon such a motion or upon a similar motion in behalf of the accused, or upon its own motion, the court shall cause the accused * * * to be examined as to his mental condition by at least one qualified psychiatrist, who shall report to the court. * * *" (Emphasis supplied.)

It is the contention of the government that the information contained in the pre-sentence report made by a Probation Officer was sufficient basis for the trial court's denial of appellant's motion for a psychiatric examination under § 4244. That report, marked Exhibit C herein, indicates, inter alia, that in July, 1952, in an Army hospital in Japan, he had an operation for the removal of bone fragments from his brain caused by a gunshot wound occurring in 1949 and that a tantalum plate was applied to the skull; that he had a history of "black-out spells"; that he was scheduled to report to the Veterans Administration Hospital in St. Louis on October 5, 1959, to determine the cause of the alleged "black-out spells". The report includes the Probation Officer's summary of the appellant's file in a Veterans Administration Regional Office in St. Louis. The summary indicated that the appellant was given a psychiatric examination while in the army in December, 1952; that "His mental status was described as moderately retarded, dull. No evidence of psychosis; not insane; knew the difference between right and wrong. Diagnosis: Antisocial personality." The report also indicates that the appellant was given a psychiatric examination at the United States Army Hospital at Fort McClellan, Alabama, in May, 1953; that the diagnosis was "Anti-social personality, severe, based on pathological lying, criminalism, misconduct, habitual shirker, etc. Was mentally responsible and knew the difference between right and wrong."

The only question here is: Did such information justify the trial court's denial of appellant's motion? We think it did not and that error was committed in the denial. Nothing in the record justifies the conclusion that the motion in behalf of the appellant was frivolous or not made in good faith. The two psychiatric examinations, of which the court had only a Probation Officer's summary, were made a number of years prior thereto. Appellant suffered a serious brain injury, had a history of "black-out spells", was about to be examined by the Veterans Administration because thereof, and his court-appointed counsel claimed he was unable to assist in his defense, hence the examination was "necessary in the interests of justice". Certainly this showing not only justified but required under the terms of the statute the granting of the motion and the ordering of the examination by at least one qualified psychiatrist.

The United States Court of Appeals for the District of...