Mitts v. State

• Decision Date: 16 September 1959
• Docket Number: No. A-12752,A-12752
• Citation: Mitts v. State, 345 P.2d 913 (Okla. Crim. App. 1959)
• Parties: Jesse MITTS, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 913

345 P.2d 913

Jesse MITTS, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.

No. A-12752.

Court of Criminal Appeals of Oklahoma.

Sept. 16, 1959.

Rehearing Denied Oct. 28, 1959.

Syllabus by the Court.

1. Under the provisions of 22 O.S.1951 §§ 1161 and 1162, the question of present sanity must be raised before trial or during the trial proceedings and prior to rendition of the verdict.

2. The question of insanity at the time of the commission of a crime is an affirmative defense and must be interposed during the trial.

3. Where an attack on the trial court's jurisdiction is made, we will inquire if anything was lacking to complete the court's jurisdiction before rendition of the verdict, and where it appears the trial court had jurisdiction of the person, of the subject matter, and authority to receive the verdict of the jury, the proceeding will be sustained.

4. The sanity of an accused at the time he committed the offense is conclusively determined by the judgment of conviction, and cannot be again raised in a proceeding to have determined the question of his sanity before execution of capital sentence on him.

5. Where a judgment and sentence is set aside on ground of present insanity after rendition of jury's verdict, and defendant is committed to a mental hospital, upon certification by the Superintendent of said hospital that his sanity is restored, the trial court acts within its lawful powers in pronouncing judgment and sentence in keeping with the jury's verdict.

6. Where no substantial right has intervened or will be affected, a trial court always acts within its judicial powers in perfecting its records, even though after long delay.

7. Where a convict is held in a mental hospital on ground of present insanity, he is in no position to complain that the hospital authorities delayed in calling the matter of the defendant's sanity to the trial court's attention, for such delay is in the nature of a gratuitous reprieve from execution of the judgment, without injury and not prejudicial to the defendant.

8. Where evidence is urged by defendant on a motion for new trial on the ground the same is newly discovered, it must be established that the same, if existing at the time of trial, could not have been procured before trial by the exercise of due diligence, and failure to do so constitutes a bar to a new trial on such ground. 22 O.S.1951 § 952.

Appeal from District Court, Tulsa County; W. Lee Johnson, Judge.

Plaintiff in error, Jesse Mitts, was convicted of the crime of murder, sentenced to death in the electric chair, and he appeals. Modified to confinement in the state penitentiary for a period of ninety-nine years and as modified, affirmed.

Dickey & Richard & Dennis Bushyhead, Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

BRETT, Judge.

This is an appeal by Jesse Mitts from an order of the District Court of Tulsa County, Oklahoma, overruling the defendant's motions in arrest of judgment and for a new trial from a verdict of a jury imposing the death penalty for the crime of murder.

There are two phases to this case, the original trial proceeding, and this special proceeding and for a proper understanding thereof a background delineation is essential. The original trial proceeding was appealed to this Court. Mitts v. State, 82 Okl.Cr. 367, 170 P.2d 563. Therein the defendant was tried and convicted of the murder of one Ray Martin by shooting him with a pistol. The record discloses the killing arose as the outgrowth of the defendant's attentions to the deceased's wife and daughter. It appears that Martin told Mitts to stay away from them. Mitts testified Martin said he would kill him if he did not. Thereafter, the defendant became fearful, bought a pistol, went to the deceased's home on Christmas Eve, in the nighttime, and waylaid him from outside his window just after Martin had lain down on the bed and was engaged in reading his evening paper. The defendant fired the shot into the decedent's head from a distance of three and one-half feet, killing him. Defense counsel in his brief, commenting on the facts, observed: 'The state's proof tended to show a deliberate, premeditated killing.' The defendant said he became 'pretty screwed up' about Martin's threat. He related he killed Martin 'because he was going to kill me.' He believed that it was not wrong when 'it would be either your life or his life.' That this was a premeditated killing is clearly apparent. The defendant returned to his home after the killing and hid the gun under a board in a chicken house. He later confessed and took the officers to the place where the gun was hidden.

In the trial on the merits, the defendant testified he had an honorable medical discharge from the army received during World War II growing out of being hit in the head by a falling airplane. As a result thereof, he was in several government hospitals thereafter. He further testified he did not know what his disability was, only that he had a silver plate in his head and that he was drawing government compensation therefor. No other proof was offered by the defendant on the question of his disability, except on cross-examination he testified he did not think he was insane. Counsel for the defense on the merits in his brief on appeal said: 'It is to be remembered that the defense of insanity was not raised at the trial.' This is true, both as to insanity at the time of the commission of the crime and present insanity at the time of or during the trial. Counsel for the defendant apparently did not believe his client was insane at either time. He offered the defendant's testimony of the injury and hospitalization as a psychological device, with no further proof thereon. Apparently, neither the trial counsel nor trial court had any doubt as to the defendant's sanity at the time of the trial on the merits or the question would have been raised. The jury returned its verdict of guilty of murder and fixed the punishment at death in the electric chair. Motion for new trial was filed and overruled. No mention of insanity at the time of the crime was made in any way in the motion for new trial. Thereafter, the matter came on for hearing on a motion in arrest of judgment on the ground the defendant was presently insane.

A jury was impaneled to try that issue, but before the matter could be concluded, the judge presiding over that matter, being unimpressed with the evidence, took the case from the jury and proceeded to pronounce judgment and sentence of death in the electric chair in accordance with the jury's verdict. In this he committed error, for a discussion of which see Mitts v. State, supra. Thereafter, defendant was admitted to the state penitentiary for execution.

While defendant was confined in the penitentiary, the Warden became concerned of his present sanity. Proceedings were instituted in the District Court of Pittsburg County by the county attorney thereof to determine the defendant's then condition. 22 O.S.1951 §§ 1161-1169. The defendant was examined by Dr. F. M. Adams of the State Health Department and on his and other testimony, the jury, on October 17, 1945, found Mitts to be presently insane. He was thereupon committed to the state hospital at Vinita, Oklahoma. This proceeding superseded the aborted present sanity trial in Tulsa County and met the requirements of the law.

Thereafter, on June 26, 1946, the appeal in Mitts v. State, 82 Okl.Cr. 367, 170 P.2d 563, supra, on the merits was determined and an order issued, the gist of which was that the judgment and sentence of the District Court of Tulsa County be set aside and the matter of imposition of judgment and sentence be postponed until the defendant recovered his sanity, at which time he was to be returned to the District Court of Tulsa County to await its order. Under the order of the District Court of Pittsburg County, the defendant continued in custody of the state hospital for more than twelve years.

On November 20, 1958, the Medical Superintendent, Dr. P. L. Hays, notified Presiding Judge W. Lee Johnson of the District Court of Tulsa County that for the past several years the medical staff had felt that the defendant, Mitts, had recovered and was then responsible for his acts, and should be returned to the court for further action. The court ordered that the defendant be returned to Tulsa County for pronouncement of judgment and sentence. It being discovered that the formality of vacating the original judgment and sentence had not been performed, the same was thereupon accordingly done.

At no time subsequent to the time of the certification by the hospital of the defendant's sanity has his sanity been questioned by himself or counsel. Mr. Dickey was expressly asked: 'Do you intend by your motion in arrest of judgment that the defendant is now insane?' The answer by Mr. Dickey was, 'No, sir.' So, the question of present insanity was not raised following the certification of sanity.

In accordance with this Court's order, the judgment and sentence was reentered on January 20, 1959, and from that proceeding the defendant appeals seeking relief therefrom and a new trial in the case on its merits.

The defendant contends that the trial court on the merits was without jurisdiction to try the defendant, he being insane at the time of and throughout the trial. He also asserts insanity at the time of the killing. The question of either insanity at the time of the trial on the merits or insanity at the time of the killing was not raised as a defense prior to rendition of the verdict. Mr. Frank Hickman, now deceased, counsel of the defendant's own choice, was among the state's ablest attorneys, especially in the field of criminal law. It is of great force that neither he nor the trial judge sought to raise the issue of present sanity before rendition of the jury's verdict. Apparently, they...