McGarrh v. State

• Decision Date: 14 January 1963
• Docket Number: No. 42396,42396
• Citation: 249 Miss. 247,148 So.2d 494
• Parties: Everett McGARRH v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 494

148 So.2d 494

249 Miss. 247

Everett McGARRH v. STATE of Mississippi.

No. 42396.

Supreme Court of Mississippi.

Jan. 14, 1963.

J. P. Coleman, Ackerman, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

LEE, Presiding Justice.

Everett McGarrh, on an indictment charging him with the murder of Mrs. Ida McGarrh, when the case came to issue on the merits, pled not guilty by reason of insanity at the time of the killing. The jury found him guilty as charged, but certified that they disagreed as to the punishment. From a sentence and judgment of life in the State Penitentiary, he appealed.

The history of the case, in chronological order, before it reached the trial on the merits, was substantially as follows:

On June 5, 1960, Everett McGarrh shot and killed his wife, Mrs. Ida McGarrh. At the same time, he shot his daughter, Mrs. Virginia McGarrh Lamb, twice, and a short time later he shot himself three times. Both he and his daughter recovered.

On July 13, 1960, on his petition, the Circuit Judge of the district ordered his committal to the Miss. State Hospital for the insane at Whitfield, Mississippi, for observation, evaluation and treatment of his mental condition, his custody to be delivered to the Sheriff of Webster County at the institution when the authorities had finished with him. He was received at Whitfield on July 18, 1960; and thereafter on September 1, 1960, Dr. W. L. Jacquith, Director, in a letter to the Circuit Judge, certified that, pursuant to the order of committal, McGarrh was observed for the requisite period and that he appeared before the Hospital Staff on September 1, 1960; that the Staff was of the unanimous opinion that he was severely depressed and that the depression had reached insane proportions; that he was not competent and responsible at the time of the actual crime; and that he was not responsible at that time.

On December 6, 1960, McGarrh was indicted by the grand jury of Webster County for the murder of Mrs. McGarrh; and, on the same date, when the State sought to arraign him, his counsel objected because of the insanity of the accused. The next day, the court ordered a jury trial on the issue of present insanity; and, on the same date, on motion of the State, a qualified psychiatrist was appointed to make an examination.

Subsequently, on December 14, 1960, a jury was empaneled and the issue of present insanity was tried, with the jury finding the defendant to be 'presently insane.' A judgment was entered accordingly, and the defendant was returned to the State Hospital until it might be legally determined that he had been restored to sanity.

On September 4, 1961, the Circuit Judge entered an order, reciting that he had been advised by the Superintendent of the Hospital that McGarrh had been restored to sanity, and directed the Sheriff of Webster County to transfer him to the county jail of Attala County for safekeeping to answer the State on a charge of murder.

At the November 1961 Term of the Circuit Court of Webster County, the defendant pled not guilty for the reason that he was insane at the time of the commission of the alleged offense, and filed his motion for a change of venue. This motion was sustained, and the venue was changed to Grenada County. Thereafter the cause was tried in the circuit court of that county, when the sole issue for determination by the jury was whether or not the defendant, at the time of the killing, was able to distinguish the difference between right and wrong. The result of the trial, with the appeal therefrom, has already been stated above.

Appellant assigns and argues here that the court erred in (1) refusing his requested peremptory instruction of not guilty; that (II) the verdict of guilty was against the overwhelming weight of the evidence, and should have, therefore, been set aside and a new trial granted; that (III) the hypothetical question to Dr. Waldron as to defendant's sanity on June 5, 1960, erroneously included hypotheses unsupported by any testimony and omitted undisputed facts favorable to him; that (IV) it was reversible error to allow the State, in rebuttal and over objection, to introduce evidence as to the defendant's use of whiskey and his improper association with women other than his wife; that (V) it was reversible error to allow Dr. Waldron, over objection, to testify that the defendant, when he examined him, invoked his constitutional right not to discuss the alleged crime, and when the court refused to order a mistrial after the special prosecutor commented thereon in his argument; that (VI) it was prejudicial error to allow the State to offer some evidence as to the drinking and sanity of the defendant on its case in chief and then permit many witnesses to testify on those features in rebuttal after the defense had rested his case; and that the court erred (VII) in overruling defendant's motion to abate the prosecution and dismiss the same.

Before beginning a summary and analysis of the facts and circumstances in this case, it is well and proper first to state some of the legal principles which are directly applicable in the determination of the present problem.

In Smith v. State, 95 Miss. 786, 49 So. 945, 27 L.R.A.,N.S., 461, the Court adopted the following statement from 1 Wigmore on Evidence, Sec. 228, to-wit: 'Where the defense is insanity, general or partial, the door is thrown wide open for the admission of evidence; every act of the party's life is relevant to the issue and admissible in evidence.' Some of the cases in which the same rule was applied are: Eatman v. State, 169 Miss. 295, 153 So. 381; Hand v. State, 190 Miss. 314, 200 So. 258; Hinton v. State, 209 Miss. 608, 45 So.2d 805, 46 So.2d 445, appeal dismissed and certiorari denied in the Supreme Court of the United States, 340 U.S. 802, 71 S.Ct. 68, 95 L.Ed. 590; Denham v. State, 218 Miss. 423, 67 So.2d 445. The Smith case, supra, was also cited in Elmore v. State, 143 Miss. 318, 108 So. 722; Hoye v. State, 169 Miss. 111, 152 So. 644; Pullen v. State, 175 Miss. 810, 168 So. 69; Williams v. State, 185 Miss. 449, 188 So. 316; Carter v. State, 199 Miss. 871, 25 So.2d 470; Ratcliff v. State, 201 Miss. 259, 29 So.2d 321; Lewis v. State, 209 Miss. 110, 46 So.2d 78; Rogers v. State, 222 Miss. 690, 76 So.2d 831; Johnson v. State, 223 Miss. 56, 76 So.2d 841, 81 So.2d 558; Keeler v. State, 226 Miss. 199, 84 So.2d 153; Burr v. State, 237 Miss. 338, 114 So.2d 764; Wilson v. State, Miss., 140 So.2d 275.

Besides, at the moment that the proof warrants a reasonable doubt as to the ability of the accused at the time of the offense to distinguish right from wrong, it devolves upon the State, before a conviction can be had, to remove it to the satisfaction of the jury beyond reasonable doubt. Cunningham v. State, 56 Miss. 269; Bishop v. State, 96 Miss. 846, 52 So. 21; Waycaster v. State, 185 Miss. 25, 187 So. 205; Gambrell v. State, 238 Miss. 892, 120 So.2d 758.

In addition, the rule in this State, with reference to the admission of opinions of non-experts on the question of sanity or insanity, is that such opinions are admissible, if accompanied by a statement of the facts on which they are based, whenever the witness has had such acquaintance or opportunity for observation as is likely to make the opinion valuable. Wood v. State, 58 Miss. 741. See also Sheehan v. Kearney, 82 Miss. 688, 21 So. 41, 35 L.R.A. 102. Cf. Bailey v. State, 147 Miss. 428, 112 So. 594; McGinnis v. State, 201 Miss. 239, 29 So.2d 109.

Mrs. Virginia McGarrh Lamb, the only child of the McGarrh marriage, at the time of the trial, had been married a year and two months. She testified that her mother had worked at a glove factory for about seven years but had quit her job and had been making a real effort to make a success of the marriage. The family had lived on a ninety-acre farm about seven or eight miles from Eupora since 1949 or 1950. Her father had been drinking excessively for about two years. He got to where he drank every day, and would fuss and gripe and would be so drunk sometimes that he would have to go to bed. Finally, she left home and got a job in town and rented an apartment. Her mother came to her apartment the latter part of February and both of them lived off of what the witness made at her job. Her father would seek reconciliations and would promise to change his way, and her mother would return to him. After her return, there would be no change. About five different separations occurred. Finally her mother filed suit for a divorce, support, etc., and the cause was set for trial. On Sunday morning before the trial was to come up the following Tuesday, her father came to the apartment and talked to her mother one and one-half to two hours, wanting her to come back. But her mother told him that she was going through with her plans. After he left, she and her mother 'had made the rounds' and were near their home. Her mother was driving the car. As they approached the house, they saw her father coming down the road in his pickup. He cut into the road and stopped in the middle so that they could not pass. Her mother tried to back up as he ran toward the car. She stopped and said, 'Everett, don't do it, I'll live with you.' He said, 'No, you won't', and he began shooting. She thought there were five shots. She was hit twice, one shot going through to the back of her neck, and the other through her nose and mouth and lodging next to her spine. She opened the door, fell out and squatted by the car until he drove off. Her mother, under the steering wheel, was killed instantly.

On cross-examination, she said that, at each reconciliation, her father would promise to quit his doings; that he was not drinking on that Sunday morning, was not disturbed, and was just as usual; that, in their rounds, they saw his truck where he said it was not going to be; that he had told them he was not going to...