Rogers v. State

• Citation: 76 So.2d 831,222 Miss. 690
• Decision Date: 10 January 1955
• Docket Number: No. 39466,39466
• Parties: James ROGERS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 831

76 So.2d 831

222 Miss. 690

James ROGERS v. STATE of Mississippi.

No. 39466.

Supreme Court of Mississippi.

Jan. 10, 1955.

Cason Rankin, Tupelo, for appellant.

J. P. Coleman, Atty. Gen., by Wm. E. Cresswell, Asst. Atty. Gen., for appellee.

LEE, Justice.

From a conviction of burglary, with a sentence of two years in the state penitentiary, James Rogers appealed.

Unfolding the facts in chronological order, they are as follows: On Thursday, June 25, 1953, N. L. Conwill locked his dwelling house, left the key with a neighbor, Willie Copeland, and made a trip to Chicago, Illinois. He returned on the following Wednesday, and the next morning, noticed that a window had been torn, the hinges had been pried off, and at least fifty pounds each of ham and beef, of the value of 50cents a pound, had been taken from the deep freeze in a side room of the house. The neighbor, with whom he left the key, did not get the meat.

An investigation was begun, and a few days later, Rogers made a free and voluntary confession in the presence of Conwill, the sheriff and two deputies, that he, on Friday after Conwill left on the trip, opened the window screen, pried the hinges off the window, went in the house, and got as much ham and beef as he could carry away in a sack. Thereafter on July 10th, Rogers was admitted to the insane hospital at Whitfield. However, after observation and examination by the full staff on July 23rd, he was held to be without psychosis, and was discharged on the 28th of the month. He was again admitted on February 14, 1954, but after observation and examination by the entire staff on February 23rd, he was again found to be without psychosis, and on February 28th, he was again discharged.

In the meantime, on February 22, 1954, the grand jury returned an indictment in two counts, charging burglary and larceny, that is, the breaking and entering of the house, and the taking of the meat.

When the case was called for trial on March 1st, counsel for defendant filed a suggestion of present insanity, with an offer to submit evidence. Two days later a jury was impaneled to try that issue.

Four lay witnesses testified that the defendant would laugh when there was no occasion therefor, and also about certain other peculiarities; but they shied away from the expression of an opinion that he was insane. His father was somewhat stronger in his opinion as to sanity, and testified that the defendant's mother is crazy; that an aunt is not right; that a grandmother was crazy for about six months; and that two of his great-aunts were crazy.

For the State four lay witnesses, who had seen and observed the defendant over a long period of years, were of the opinion that he was not crazy. Dr. James Head and Dr. W. L. Jaquith, from the mental institution at Whitfield, testified in detail in connection with the defendant's two admissions to the institution; their diagnoses and those of the entire staff; that he was on the border line according to standard intelligence tests, but that he was without psychosis, and gave no evidence of insanity. Under an order of the court, they examined the defendant in the presence of his counsel for sanity that day, and, over the objection of his counsel, were permitted to testify that they found 'no evidence of any insanity,' and that, in their opinion, he was then rational enough to conduct a defense of his case.

The instructions for the defendant and the State required the jury to believe beyond a reasonable doubt that the defendant was then sane and capable of conducting a rational defense. The jury found that he was 'presently sane and capable of conducting a rational defense in this case.'

Two days later, another jury was impaneled to try the case on its merits. Like evidence, as heretofore detailed, was adduced by both the State and the defendant.

The jury was instructed that it could find the defendant guilty, not guilty, not guilty by reason of insanity, with a finding that he has since been restored to reason, or that he has not been restored to reason. The verdict was guilty as charged, with a recommendation of mercy.

The appellant contends that the court erred in admitting the confession because the corpus delicti had not then been proved.

At the time of the admission, the State had already proved that the house was securely closed when the owner left, and, on his return five or six days later, a screen window had been torn, the hinges had been pried off, and a large quantity of meat was missing, without his consent. This was substantial evidence that a burglary and larceny had been committed, and therefore established the corpus delicti. Yates v. State, 172 Miss. 581, 161 So. 147. See also Simmons v. State, 208 Miss. 523, 44 So.2d 857. Consequently the confession was properly admitted; and when it was added to the evidence, which had been previously adduced, the whole was sufficient to establish the corpus delicti beyond a reasonable doubt. Simmons v. State, supra; Pope v. State, 158 Miss. 794, 131 So. 264.

Although the court permitted the State to reopen and offer additional evidence, after the defendant had moved for a directed verdict, this did not constitute error. The motion should have been overruled anyway, as the State had made out a sufficient case. Permission to reopen did not constitute an abuse of discretion. There was no prejudice from the action. Lewis v. State, Miss., 56 So.2d 397; Williams v. State, Miss., 26 So.2d 64; Morris v. State, 148 Miss. 680, 114 So. 750; State v. Martin, 102 Miss. 165, 59 So. 7.

The indictment charged that the defendant 'feloniously and burglariously did break and enter' the dwelling house. Appellant contends that it was fatally defective because it did not contain the adverb 'willfully'. He cites no authority. The word is not in the statute. Besides in burglary, where theft is the purpose, the breaking and entering must be with intent the goods and chattels of the owner then in said house feloniously and burglariously to take, steal and carry away. Draughn v. State, 76 Miss. 574, 25 So. 153.

The defendant objected to the testimony of Drs. Head and Jaquith as to the result of their examination, under order of the court, on the question of present insanity. The ground was that he was compelled to give evidence against himself, in violation of Section 26 of the Constitution.

The suggestion of present insanity necessitated the trial of that issue first. Williams v. State, 205 Miss. 515, 39 So.2d 3; Musselwhite v. State, 215 Miss. 363, 60 So.2d 807; Shipp v. State, 215 Miss. 541, 61 So.2d 329; Pace v. State, Miss., 67 So.2d 521. The relationship of physician and patient did not exist. Hopkins v. State, 212 Miss. 772, 55 So.2d 467. Defendant had twice voluntarily submitted to an examination by these doctors at the mental institution. The burden was on the court to determine whether or not he then had sufficient capacity to conduct a rational defense. These witnesses were experts in their...