Newsome v. Com.

• Decision Date: 14 December 1962
• Citation: 366 S.W.2d 174
• Parties: Goebel Lee NEWSOME, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 174

366 S.W.2d 174

Goebel Lee NEWSOME, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Dec. 14, 1962.

Dissenting Opinion Jan. 15, 1963.

Rehearing Denied April 19, 1963.

Francis M. Burke, Pikeville, for appellant.

John B. Breckinridge, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for appellee.

STEWART, Chief Justice.

Appellant, Goebel Lee Newsome, was indicted for the wilful murder of Lawrence Robinson. He was convicted in the Pike Circuit Court of voluntary manslaughter and sentenced to 21 years in the penitentiary.

The evidence for the Commonwealth established that Newsome and his co-defendant, Roy Branham, and Lawrence Robinson and Ireland Robinson, the latter two being brother, got together about 5:00 p. m. on the afternoon of November 11, 1960. They visited a number of places including a road house before going to the home of Charles 'Bit' Elswick on the top of a remote mountain between Caney and Marrowbone creeks in Pike County.

After spending about on hour with Elswick, his wife and some others who were visiting the Elswicks, Newsome, Roy Branham and Lawrence Robinson went out of the Elswick house. A short time later Elswick heard some commotion which caused him to open his front door and look out. He saw Lawrence Robinson lying face down and Newsome standing near him with a baseball bat in both hands. Ireland Robinson, the brother of the prone man, presently appeared and he and Elswick both testified that Newsome said: 'I have killed your brother and I'm going to kill you too, damn you', and started advancing and striking at him. Lawrence Robinson died early the next day from the injuries thus received.

Newsome's defense at his trial was insanity. He testified that at the age of 12 he fell and severely injured his head. Since that time he has been subject to blackouts of varying duration. He stated he did not remember anything from a time shortly before the murder until he came to his senses, about four days later, and found himself in Harvard, Illinois, a town close to Belviders in that state where he then resided. When his wife informed him he was wanted by the police, according to his testimony, he promptly surrendered himself.

Newsome's wife and mother testified to the fact that he often had seizures during which time he became uncontrollable and violent. Two doctors testified that, from physical examinations and tests such as an encephalograph and a study of his past medical history, which included a mastoid operation, Newsome suffered from an organic deterioration of his brain cells and that such deterioration amounted to a mental defect or disease which led to the mental blackouts of which he complained and which produced a lowered control of his activities.

Appellant first argues that the M'Naghten Rule which is applied in Kentucky to determine criminal responsibility as to mentally defective persons should be struck down. The trial court instructed on insanity using the M'Naghten test. The M'Naghten Rule is to be found in 8 English Reports, Reprint, at p. 722 et seq. (1843), and was engendered by the excitement and fear which grew out of the acquittal of Daniel M'Naghten who had attempted to assassinate Sir Robert Peel, the them Prime Minister of England, but who instead shot Peel's private secretary, Drummond, because M'Naghten had mistaken Drummond for Peel. See United States v. Currens, 3 Cir., 290 F.2d 751.

A fairly recent panel conference on mental disease as it relates to criminal responsibility was held at the Harvard Law School and this problem was considered at length. The participants were Professor Abram J. Chayes of the Harvard Law School, who had assisted in the preparation of the Durham opinion and who presented the view adopted therein (See Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d, 1430); Professor Herbert Wechsler of the Columbia Law School, Chief Reporter of the American Law Institute's Model Penal Code, who presented the American Law Institute's view (the Model Penal Code, which promulgated what might be called 'the irresistable impulse' test, was adopted at a meeting of the American Law Institute in Washington in May of 1962); and Professor Jerome Hall of the Indiana University School of Law, who presented the M'Naghten view.

The proceedings of this symposium, in part, appear under the title of Mental Disease and Criminal Responsibility--M'Naghten versus Durham and The American Law Institute's Tentative Draft in 33 Indiana Law Journal, pages 212 through 225. Professor Jerome Hall, the author of this law journal article, discusses critically the views mentioned above. For a fuller discussion of mental disease and criminal responsibility see the publication dealing with this subject in the footnote references to the law journal article.

The McNaghten Rule has become fastened onto the law of England and is controlling in practically all of the states, and has also been followed by nearly all of the federal courts. Kentucky has consistently adhered to this rule. See Corder v. Commonwealth, Ky., 278 S.W.2d 77; Sharp v. Commonwealth, 308 Ky. 765, 215 S.W.2d 983; Horn v. Commonwealth, 292 Ky. 587, 167 S.W.2d 58; and Cline v. Commonwealth, 248 Ky. 609, 59 S.W.2d 577. The simple formulations of the McNaghten Rule are thus set forth in Professor Jerome Hall's law journal article at page 213:

'* * * The McNaghten Rule is the rule of reason. It is stated * * * in two formulas * * *. One * * * is--does the defendant have the competence to understand ordinary everyday things and actions and the ordinary consequences of these actions? This is what psychiatrists talk about in terms of 'the reality principle.' And the other wing of M'Naghten asks, does he have the competence to understand ordinary valuations which, in the criminal law, means, e. g., does he know that it is wrong to bash in somebody's head or to kill a human being? * * *.'

Appellant's chief criticism of the M'Naghten Rule is that it is archaic and obsolete, and that this Court should substitute therefor a so-called realistic and workable test to resolve the criminal responsibility of the insane or mentally ill, based upon present knowledge developed by reserch and study in this area by the medical, psychiatric and psychological professions.

It is argued that the relation of mental illness to criminal responsibility should be left to the determination of experts, the psychiatrists and the psychologists, and that the courts should be guided by their more enlightened diagnosis of the particular mental disease under consideration. But the problem then arises, which experts shall we believe, for it is a matter of common observation that there are no basic psychiatric or psychological concepts that all psychiatrists or psychologists are able to accept unconditionally.

Psychology, including psychiatry, deals with vastly complex and impalpable data. Eminent psychiatrists themselves have testified as to the status of psychiatry: e. g., H. S. Sullivan, that 'the best psychiatry is still more of art than of science'; and C. G. Jung, that 'there are, in fact, many methods, standpoints, views and convictions which are all at war with one another.' See Psychiatry and Criminal Responsibility, 65 Yale Law Journal, 261, 772.

The purpose of this opinion is not to discuss in detail or undertake to evaluate the Durham Rule and the American Law Institute Rule. Appellant leaves us in the dark as to which of these rules he would have this Court adopt. At the present time, proponents of the one rule are unable to agree upon the principles underlying the other. As both of these rules have evolved from the research of psychiatrist and physiologist, we believe as Professor Jerome Hall states the proposition in the last sentence of his law journal article. He said: 'But there must be a great deal of study before we can determine what is valid and how to use the insights and discoveries of clinical work effectively without destroying the values represented in our law.'

This Court concludes the M'Naghten Rule should be retained as the test for criminal responsibility in this jurisdiction.

Appellant next argues that he was entitled to a directed verdict of not guilty by reason of his insanity; that the Commonwealth was entitled to rely upon the presumption that he was sane; but that appellant's uncontroverted evidence of insanity rebutted such a presumption and the jury had no evidence upon which to base its finding of sanity.

It is true the Commonwealth did not introduce any evidence to rebut the testimony of insanity. In criminal actions the mere fact that a defendant has some form of insanity does not relieve him from the consequences of his act; he must be so bereft of mind as to render him incapable of knowing right from wrong or, if knowing, incapable of controlling his actions.

It is apparent from the medical testimony introduced that the question of appellant's insanity at the time of the commission of the act did not resolve itself into one of law but was an issue of fact to be determined by the jury. It follows that the Court did not err in overruling appellant's motion for a peremptory instruction. See Sharp v. Commonwealth, 308 Ky. 765, 215 S.W.2d 983.

Appellant's final contention is that 'Instruction 4-A' on drunkenness was erroneous and highly prejudicial to appellant's substantial rights. We do not agree. The instruction given in the present case is almost identical to the model set forth in Vol. 3, sec. 902(2), p. 217, of Stanley's Kentucky Instruction to Juries. It was approved in Arnold v. Commonwealth, 194 Ky. 421, 240 S.W. 87, and Mathley v. Commonwealth, 120 Ky. 389, 86 S.W. 988. In the former case, the defense against homicide was insanity. There was evidence offered that the defendant had been drinking. This Court stated:

'* * * it would not have been error for the court to have instructed the jury that, if his lack of reason...