Robertson v. Commonwealth

• Citation: 120 S.W.2d 680,275 Ky. 8
• Parties: ROBERTSON v. COMMONWEALTH.
• Decision Date: 14 October 1938
• Court: Court of Appeals of Kentucky

120 S.W.2d 680

275 Ky. 8

ROBERTSON v. COMMONWEALTH.

Court of Appeals of Kentucky

October 14, 1938

Appeal from Circuit Court, Rockcastle County.

Eddie Robertson was convicted of murder, and he appeals.

Judgment affirmed.

Williams & Denny, of Mt. Vernon, for appellant.

Hubert Meredith, Atty. Gen., and John M. Campbell, Asst. Atty. Gen for the Commonwealth.

PERRY Justice.

The appellant, Eddie Robertson, having been indicted by the grand jury of the Rockcastle circuit court at its August, 1937 term, charging him with the murder of Arthur Mullins, was upon his trial therefor found guilty, as charged, and his punishment fixed at life imprisonment.

Briefly summarized, the commonwealth's evidence clearly established that shortly after noon of April 15, 1937, the accused, Eddie Robertson, was walking down one of the main streets of Mt. Vernon, Rockcastle county, Kentucky, and had reached the business section of the town, where there were some forty or fifty people standing around, when he met the deceased as he walked up the street, unaware of the presence of the accused; that as the deceased passed him, the accused without any apparent provocation, suddenly reached out with his left arm, grabbed the deceased and pressed him to him, as with his right hand he drew his gun and shot and killed him.

This homicide occurred in the public view of these forty or fifty people standing nearby in the street, several of whom were eyewitnesses of the killing and who testified upon the trial to such being the facts and circumstances under which it occurred.

One of the commonwealth's witnesses, Johnnie Lakes, a marshal of the town of Livingston and a friend of the defendant, who lived near there, stated that he was with the defendant all during the day on which this homicide occurred, had lunch with him and shortly thereafter again met the defendant and had a conversation with him (some fifteen or twenty minutes before he killed the deceased), when he inquired of witness as to where the deceased then was, to which he answered that he did not know; that the defendant then said, "I want to see him and talk with him; he thinks I am mad at him and I am not". Further he testified that he thought Robertson at the time was under the influence of liquor.

Also, the commonwealth witness, Millard Doan, a deputy sheriff of Rockcastle county, who was nearby at the time of the shooting and arrested the defendant, testified that while he couldn't say that the defendant was drunk, he could smell liquor on him and that he was drinking.

Another commonwealth witness, Albert Mullins, testified that the defendant had a son, Willie Robertson, who had been indicted and twice tried on a highway robbery charge, at the January and April, 1938, terms of the Rockcastle circuit court; that upon the first trial the deceased had testified as an adverse character witness against the defendant's son; that thereafter, but some while before the occurrence of the homicide here involved, he and the defendant were talking together about what Arthur Mullins, the deceased, had sworn on that trial, when the defendant said, "A man that would say that his boy's character wasn't good and his wasn't any better than the boy's that he would get even with him"; also, that he had told several people about what the defendant had then said after Arthur Mullins was killed.

The defendant, when called to trial on the indictment charging him with the murder of the deceased, Arthur Mullins, entered a plea of not guilty, and thereunder sought to excuse his admitted killing of Mullins and avoid his responsibility therefor upon the ground that when the homicide was committed he was temporarily insane. To maintain such defense, he introduced a number of lay witnesses, who testified that after appellant's son was convicted upon his second trial on the charge of highway robbery, the defendant brooded over the jury's verdict returned against his son and talked practically continuously about his son's not being guilty; that when defendant was arrested and taken to jail for shooting the deceased (the jailer and his deputy testified), he acted like a crazy man and continuously complained of his head hurting him; that while in the jail, he would put blankets around his head and mumble and talk to himself; that for a few days he ate practically nothing; that he would often go to bed, stay a few minutes, get up and go to bed again.

Appellant testified, in his own behalf and in support of the theory of his defense, that he was temporarily insane and irresponsible at the time he shot and killed the deceased; that on the day his killing of the deceased was said to have occurred, he had gone to Mt. Vernon to attend the trial of his son upon a robbery charge and had there been greatly disturbed and upset by the severe arraignment of his son by the commonwealth's attorney, who exhorted the jury to return a death sentence against him; that the last thing he remembered about the trial was, "Judge Kennedy begging to give my boy a death sentence and turn the juice on him and hear his bones crush and his flesh fry"; further, that he had no remembrance of meeting and shooting Arthur Mullins on the streets of Mount Vernon following the conclusion of his son's trial; that he had never before that time had trouble with the deceased, nor had anything against him or any wish or desire to do him any harm or to injure him in any way.

Defendant, in further support of his contention that he, at the time of committing this homicide, was temporarily insane and without the power of distinguishing right from wrong, or the power to overcome an irresistible impulse to kill, sought to introduce as expert witnesses Drs. John J. Moren, Geo. P. Sprague, T. A. Griffith, John C. Baker and M. Pennington.

Upon the examination of the last three named of these several physicians, it appeared that no one of them had ever treated the defendant for a mental disease or made any personal observation of the condition of defendant with respect to his being so afflicted. Their testimony, therefore, of necessity was limited to giving their expert opinion as to whether or not the defendant at the time of the homicide was of unsound mind when his mental condition was such as portrayed by the recitals in respect thereto presented in the hypothetical question submitted.

Two of these doctors, Sprague and Moren, offered as experts, were allowed to answer the hypothetical question submitted them, as having upon their examination established their qualification as such, by showing that they were specialists in the study and treatment of mental diseases and that their practice and experience had been devoted exclusively to the study and treatment of patients with mental and nervous trouble for a period of thirty or forty years.

Upon being permitted to give their expert opinion, in answer to the hypothetical question submitted them, and based upon the assumption of the truth of the facts recited in the supposed case, they each stated that in their opinion the person described by the facts recited in the hypothetical question was not in his right mind or that he was, at the time of the homicide, of unsound mind. Upon cross-examination, these two specialists, Drs. Sprague and Moren, stated that they did not think the defendant at the time of the homicide knew right from wrong and that he, while acting in the mental state depicted by the facts therein recited as assumed in the supposed case, would not have the ability or knowledge to resist committing the particular crime here involved.

Further, Dr. Sprague testified that he had never been acquainted with the defendant and had refused to testify in the case until he had examined the defendant to see whether he was "frauding", after which he thought he was able to tell what was the defendant's condition of mind at the time of the homicide committed in April, some eight months previous.

Upon the examination made of Drs. Baker and Pennington, whom the appellant sought to introduce also as experts to answer practically the same hypothetical question propounded to the other two doctors, it was ruled that they had failed to qualify as experts and that therefore their testimony, expressing their opinion as experts, as to the defendant's soundness or unsoundness of mind at the time of his shooting and killing of the deceased, should be stricken from the record.

These doctors each testified that they had never treated the defendant for any mental trouble nor had they ever observed his manner of acting or speaking as evidencing mental trouble at any time. Further they stated that while they were graduate and licensed physicians, two of them stated that they were general practitioners only and had made no special study and had no special experience in the treatment of mental diseases.

However, of these, Dr. Griffith, when examined in regard to his qualification to testify as an expert, stated as follows:

"Q. Have you had any experience in treating nervous diseases? A. Yes, I was on service at the Louisville City Hospital for three months and during the four years of my internship, I was at the Good Samaritan Hospital and I taught nurses psychiatry for three months.

"Q. Does that study deal with the mind? A. Yes, mental diseases and insanity."

Further he was asked:

"Q. Do you regard yourself as an expert on the question of mental diseases? A. I believe I have had more experience along that line than the average practitioner.

"Q. I asked you a question to be answered yes or...