Musselwhite v. State, 33051

• Decision Date: 10 November 1952
• Docket Number: No. 33051,33051
• Citation: 215 Miss. 363,60 So.2d 807
• Parties: MUSSELWHITE v. STATE.
• Court: Mississippi Supreme Court

Page 807

60 So.2d 807

215 Miss. 363

MUSSELWHITE v. STATE.

No. 33051.

Supreme Court of Mississippi.

Nov. 10, 1952.

Henry E. Pope and Kelly Hammond, Columbia, for appellant.

J. P. Coleman, Atty. Gen., by Joe T. Patterson, Asst. Atty. Gen., for appellee.

ALEXANDER, Justice.

Appellant, by next of friend, filed a petition for a stay of execution alleging the insanity of the petitioner occurring after judgment of conviction of murder and the sentence of the court imposing the death penalty. 212 Miss. 526, 54 So.2d 911. Upon a hearing before the trial judge, it was found that the petitioner was insane but limited the stay of execution in the nature of a supersedeas only pending appeal.

At the outset, we avoid any discussion as to the exact procedure here followed. Such view dispenses with the necessity for adjudging the propriety of the form in which it was cast. Carraway v. State, 163 Miss. 639, 644, 141 So. 342. Where the issue involves due process, technical perfection of pleading must not be required and intricate niceties may not be allowed to control. Brown v. State, 196 Miss. 316, 17 So.2d 801.

The record testimony amply supports the finding of post-trial insanity. In fact, there is no dispute or contradiction on this point. The only point of difference in the testimony of qualified expert physicians is whether the condition is the result of an overpowering sense of fear engendered by the pendency of his execution. All these witnesses agree that his condition is properly to be diagnosed as schizophrenia, catatonic type. The evidence is preponderant that this condition, while subject to aggravation by the stress of anticipated dissolution, is more deep seated and is the maturing of a progressive mental deterioration.

We are compelled under this record to accept the finding that petitioner is insane and to disregard the divergent views as to its cause. We must deal with a condition and not a theory. While the testimony upon this issue need not be here recited, there is agreement among the examining physicians that at the time of the hearing the petitioner had lost awareness of his precarious situation. Amid the darkened mists of mental collapse, there is no light against which the shadows of death may be cast. It is revealed that if he were taken to the electric chair, he would not quail or take account of its significance. There is reaction neither to audible nor physical stimuli. He takes no nourishment voluntarily and responds to neither command nor entreaty. All suspicion that his symptoms or conduct are feigned is allayed by an expert consensus that there is no malingering.

We accept therefore the finding that the petitioner is insane and that such insanity had befallen him since his conviction nearly two years ago. We are therefore confronted with the question whether his execution should be stayed.

The right of the sovereign to execute one who is insane has always been denied at least since the repeal of the Statute, 33 Henry VIII, c. 20. The present humane view is thus expressed by Blackstone: 'if a man in his sound memory commits a capital offence, and before arraignment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defense? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of non-sane memory, execution shall be stayed: for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution.' Cooley on Blackstone, Book IV, p. 24. It had previously been thus expressed by Sir Edward Coke: 'the execution of an offender is for example, ut poena ad paucos, metus ad omnes perveniat (that the punishment may reach the few, but the fear of it affect all): but so it is not when a madman is executed; but should be a miserable spectacle, both against law, and of extreme inhumanity and cruelty, and can be no example to others.' 3 Inst. 6. A later rendering of this view is found in 1 Hawkins, Pleas of the Crown 2:

'As to the first point it is to be observed that those who are under a natural disability of distinguishing between good and evil, as infants under the age of discretion, idiots and lunatics, are not punishable by any criminal prosecution whatever.

* * *

'And it seems agreed at this day that if one who has committed a capital offense becomes non compos before conviction, he shall not be arraigned; and if after conviction, that he shall not be executed.'

It has been stated that no state in the Union supports the notion that an insane man may be executed. See tabulation in the dissenting opinion of Justice Frankfurter in Solesbee v. Balkcom, 339 U.S. 9, 70 S.Ct. 457, 462, 94 L.Ed. 604. We have so intimated in Howie v. State, 121 Miss. 197, 222, 83 So. 158, 10 A.L.R. 205; Sinclair v. State, 161 Miss. 142, 132 So. 581, 74 A.L.R. 241; Mitchell v. State, 179 Miss. 814, 826, 176 So. 743, 121 A.L.R. 258; Lewis v. State, 155 Miss. 810, 125 So. 419. Surely if a lunatic may not have punitive damages assessed against his property in a civil case, Feld v. Borodofski, 87 Miss. 727, 40 So. 816, he may not in a criminal case suffer execution against his life. For a full discussion, see State ex rel. Alfani v. Superior Court, 139 Wash. 125, 245 P. 929, and annotation 49 A.L.R. at page 804. We pursue no farther the legal and humane basis for this conclusion except to add that this public policy is recognized in Code 1942, Section 2558.

It is contended by the State that the procedure to be followed is that prescribed by Code 1942, Section 2558, which is as follows: 'If the sheriff shall, at any time, be satisfied that any convict in his custody under sentence of death is insane, or that any female convict under like sentence is pregnant, he shall with concurrence of the judge of the circuit court, or of the chancellor, or the president of the board of supervisors in the absence of the circuit judge, summons six physicians if to be had, and if not, other discreet and experienced freeholders and electors of said county, to make up an inquest to inquire into such insanity or pregnancy, as the case may be. The sheriff shall summons and swear all necessary witnesses and the jury and sheriff after full examination shall certify under their hand what the truth may be in relation to the alleged insanity or pregnancy, and in case such convict shall be found insane or pregnant, the sheriff shall immediately transmit the verdict of the jury to the governor and suspend execution of the sentence until the governor shall be satisfied of the sanity of said convict, or that the convict is not or is no longer pregnant. In case such convict shall be found insane, the sheriff shall immediately transmit and deliver said convict to the state insane asylum, and a copy of the verdict of the jury and...