Sears v. State

• Decision Date: 08 December 1900
• Parties: SEARS v. STATE.
• Court: Georgia Supreme Court

37 S.E. 443

112 Ga. 382

SEARS v. STATE.

Supreme Court of Georgia

December 8, 1900

Syllabus by the Court.

1. When a practicing physician has made an affidavit that a person who has been convicted in a superior court of this state for the crime of murder, and has been sentenced by the judge of that court to be hanged, has been by affiant examined since the sentence and conviction, and discovered to be, at the time of the examination and of making his affidavit, insane and in such mental condition that the question of his sanity should be tried before a jury under the terms of the law, and when this affidavit has been duly presented to the judge for the purpose of procuring a trial on the question of the sanity of such a convict by the superior court of the county in which he has been sentenced, it is the imperative duty of the judge to order such trial, and to have a jury impaneled as provided by the statute, for the determination of this question.

2. The facts that after this conviction and sentence of the accused a motion for a new trial was made in his behalf before the judge of the superior court on the ground that he was insane at the time of the alleged commission of the crime and at the time of his trial, that the judge overruled this motion after a hearing on the same, which judgment was affirmed by this court, does not operate as an estoppel or bar to a proceeding afterwards instituted in behalf of the convict for a trial before a jury on the question of his insanity under the provisions of the act of the general assembly approved December 21, 1897 (Acts 1897, pp. 41-43).

3. The affidavits of the physicians in the present case were a compliance with the principles of law above specified, and the judge below therefore erred in refusing to grant the convict a trial before a jury on the question of his sanity.

1. There can be no lawful inquisition under section 1047 of the Penal Code, as amended by the act of December 21, 1897, into the mental condition of a convict who has been "sentenced to the punishment of death," except upon a petition to the superior court. Per Lumpkin, P.J., and Fish, J., dissenting.

2. Such a petition is fatally defective unless it affirmatively alleges that the convict became insane after having been so sentenced. Per Lumpkin, P.J., and Fish, J., dissenting.

Error from superior court, Fulton county; J. S. Candler, Judge.

Application by M. J. Sears, as next friend of James L. Baker, for an investigation as to the insanity of Baker after conviction and sentence for capital crime. From an order denying the application, petitioner brings error. Reversed.

Lee J Langley, King & Anderson, and Lewis W. Thomas, for plaintiff in error.

C. D. Hill, Sol. Gen., and J. M. Terrell, Atty. Gen., for the State.

LEWIS J.

It appears from the record that on April 17, 1900, James L. Baker was indicted by the grand jury of Fulton county for the murder of his wife, alleged to have occurred on the 13th of that month, and that on April 19, 1900, he was tried, convicted, and sentenced to be hanged for the crime. No plea of insanity was filed on the trial. A new trial was moved for in Baker's behalf, and one of the grounds of the motion was that Baker was insane at the time he did the killing. Evidence was presented pro and con upon this question, and the trial judge overruled the motion. An appeal was taken to this court, and the judgment overruling the motion was here affirmed. Baker v. State, 36 S.E. 607. After this, Mrs. M. J. Sears, as the next friend of James L. Baker, on September 4, 1900, presented to Hon. John S. Candler, judge of the superior courts of the Stone Mountain circuit, presiding in the criminal branch of Fulton superior court, her petition alleging that James L. Baker is insane, "and the condition of his mind is such that the sentence of the court, to wit, that he should be hanged, ought not to be carried into effect." To the petition was attached the affidavit of Dr. W. M. Curtis, who made oath that he is a practicing physician of Atlanta, Ga.; that he had seen and examined Baker; and that, in his opinion, Baker was at that time of unsound mind, and in such mental condition that the question of his sanity should be tried before a jury under the terms of the law. This petition was amended by adding thereto the affidavit of Dr. Marion Hull, also a practicing physician of Atlanta, Ga., who made oath that since the trial, conviction, and sentence of Baker in the superior court of Fulton county for the offense of murder he had examined said Baker, and that he (Baker) was, at the time of making said affidavit (September 4, 1900), an insane person. Affiant further swore that he was a practicing physician of Atlanta, Ga., and, because of the unsoundness of mind of Baker, that he should be tried upon the question of sanity before a jury. Mrs. Sears verified her petition under oath, and stated that she was the aunt of Baker. The petition prayed for an order directing a trial before a jury upon the question of sanity or insanity of Baker, and for all other proceedings that may be necessary or proper to determine the matter in accordance with the provisions of the statute in such cases. After considering the matter presented by the petition, amendment, and affidavits in support thereof, the judge below, on September 8, 1900, passed an order overruling the petition, and refusing to grant the trial asked for. Upon this judgment of the court petitioner specifically assigns error in her bill of exceptions.

1. This proceeding was instituted under the provisions of the act approved December 21, 1897 (Acts 1897, pp. 41-43). It will be noted from the first section of that act that it amends section 1047 of the Penal Code by striking therefrom in the third line the clause, "The sheriff of the county, with the concurrence and assistance of the ordinary thereof, shall summon a jury of twelve men to inquire into such sanity," and in lieu thereof inserts the following clause: "Upon the oath of a practicing physician the question of sanity of said convict shall be tried by the superior court of the county in which he has been sentenced, and he shall be entitled to a jury of twenty-four men, from which the state shall be entitled to six peremptory strikes, and the convict to be entitled to six peremptory strikes, said jury to be regularly drawn from the jury box of said superior court." Section 5 of the act prescribes that said section of the Code, when amended, shall read as follows: "If, after any convict shall have been sentenced to the punishment of death, he shall become insane, upon the oath of a practicing physician, the question of the sanity of said convict shall be tried by the superior court of the county in which he has been sentenced, and he shall be entitled to a jury of twenty-four men, from which the state shall be entitled to six peremptory strikes, and the convict to be entitled to six peremptory strikes, said jury to be regularly drawn from the jury box of said superior court." That section further prescribes the oath to be administered to the jury, and that, if the jury find the convict insane, the sheriff shall suspend execution of the sentence, and the presiding judge of the circuit shall cause the same to be entered on the minutes of the superior court of the county where the conviction was had. It further provides that the presiding judge shall charge the jury on the question submitted as in other cases, and, if the jury shall find the convict sane, he shall be entitled to have no other trial as to his insanity upon any new application for a trial thereof. The judge of the court below, in his order refusing the prayer of the petition, seems to rely mainly upon the fact that neither of the affidavits of the two physicians, which were attached to the petition, nor the petition itself, charged that this alleged insanity arose after the conviction and sentence of Baker; and that no effort whatever was made to show that Baker had become insane since his trial, conviction, and sentence. It is a fact, we think, worthy of notice in this connection, that it does not appear from the record before us that the state's counsel, or any one in behalf of the state, presented any demurrer to the petition or affidavits. The solicitor general, in his brief, says: "If the affidavit of the physician in this case is a compliance with the requirements of the act of 1897, it seems to me that the sanity of James L. Baker should be submitted to and passed upon by a jury. While the affidavits do not say that Baker has become insane since his trial and conviction, they do say that he is now insane; and, there having been no plea of insanity on his trial for murder, the law presuming every man to be of sound mind, if he is now insane, it follows as a corollary that he must have become insane since his conviction." The above seems to furnish a very potent reason why the solicitor general did not see fit to demur to the sufficiency of the affidavits. The truth is, the argument strikes us as being unanswerable. Even if the act requires that the physician's affidavit on its face should show that the convict had become insane after his sentence, this is the logical and legal conclusion necessarily deducible from the facts stated in the affidavits of the two physicians in the present case. A verdict of guilty, and sentence of the court thereon, establishes beyond doubt, from a legal point of view, that the accused was sane when the crime was committed, and at the time of his trial and sentence. The two physicians swore positively to his insane condition at the time their oaths were made, which was after this sentence. The two physicians swore positively to his insane condition at the time their oaths were made, which was...