Shipp v. State, 38520
| Decision Date | 01 December 1952 |
| Docket Number | No. 38520,38520 |
| Citation | 215 Miss. 541,61 So.2d 329 |
| Parties | SHIPP v. STATE. |
| Court | Mississippi Supreme Court |
Berger & Callon, Natchez, Truly & Truly, Corban & Corban, Fayette, for appellant.
J. P. Coleman, Atty. Gen., by Dugas Shands, Asst. Atty. Gen., for appellee.
Russell Shipp was convicted of the larceny of a calf and was sentenced to serve a term of five years in the state penitentiary. From the judgment entered he appealed.
A number of errors are assigned, but we notice only the following: (1) the refusal of the court to inquire into and determine the sanity of the appellant preliminarily before the trial on the merits; (2) the admission of certain evidence; (3) the allowance of an amendment to the indictment; and (4) the refusal of the court to sustain the motion of the District Attorney to allow a nolle prosequi.
The calf was stolen about January 6, 1951. Shipp was reared in Calhoun County, but owned a place in Jefferson County. As a result of an extended investigation, he was arrested some days later, and gave bond for his appearance to await the action of the next grand jury. On January 18, an application was filed in the chancery court of Calhoun County to have him adjudged insane. The writ therefor was issued, together with notice to two physicians, who made their report, certifying that, in their opinion, Shipp was suffering from a mental or nervous disorder and was in need of treatment, etc., at a mental institution. On the same date, the court issued its order, committing him to Whitfield, and he was forthwith delivered to the institution. On February 2, he was taken before the full staff, consisting of eleven doctors, three externes and one psychiatrist. Many questions were asked and answers returned, all of which appear in the record. At the conclusion, eight of the doctors stated affirmatively in the record that the patient was suffering with schizophrenia, catatonic type. Elsewhere in the record it was shown that all of the staff actually concurred in that diagnosis.
The indictment was returned on February 5, and two days thereafter, a motion for a continuance was made on the ground that Shipp was then insane, and that he was a patient and inmate of the institution at Whitfield. On the same date, the State sought the appointment of, and the court appointed, Dr. Willard L. Waldron, a psychiatrist, to make an independent examination. Thereafter Dr. Waldron made his report and concurred in the findings of the Whitfield staff. The District Attorney attached this report, together with the certificate of Dr. F. A. Latham, of the Whitfield staff, which showed that all of the fourteen doctors agreed on the diagnosis of schizrophrenia, catatonic type, to his motion in which he asked the Court for permission to enter a nolle prosequi. The motion was overruled, and the case was continued for the term.
At the September 1951 term of the court, a certificate from Dr. W. L. Jacquith, Superintendent of Whitfield, showing that Shipp was a patient of the institution and suffering with the same ailment, was filed, and the case was again continued.
At the February 1952 term, the court overruled a motion by appellant's counsel to dismiss or abate the prosecution on account of Shipp's insanity. Counsel then made a motion for a trial preliminarily as to the present insanity of the defendant on the contention that he was then incapable of making a defense. All of the foregoing facts were before the court on this motion, together with the entire record at Whitfield. The history of the case showed Shipp's three years in the Armed Forces, his subsequent graduation from Mississippi State College, and a recapitulation of his various acts and unusual conduct for about a year previous to the alleged larceny. Suffice it to say, every doctor and expert who had observed or examined him--a total of 17, most of whom were in the employ of the State--was of the opinion that he was insane. It is impossible to conceive how stronger proof of insanity could have been produced. In the face of this overwhelming proof, the court overruled the motion and entered an order which stated that the 'Court having observed the defendant in the Court room and his demeanor during the hearing finds that there is no goaod reason for a preliminary hearing to be held before the trial in this case on the issues involved including sanity', and directed the defendant to be brought to trial on the three issues of present insanity, insanity at the time of the cmmission of the offense, and as to guilt or innocence.
In American and English jurisprudence no human being may be tried or punished for crime while he is insane. The opinion in the case of Hawie v. State, 121 Miss. 197, 83 So. 158, 159, 10 A.L.R. 205, collated numerous authorities and quoted with approval certain excerpts therefrom. Some of those quotations are as follows: Cooley on Blackstone, Vol. IV, p. 24. Freeman v. People, 4 Denio, N.Y., 9, 47 Am.Dec. 216. 'The true reason why an insane person should not be tried is that he is disabled by an act of God to make a just defense if he have one. As is said in 4 Harg.Stat.Tr. 205, 'There may be circumstances lying in his private knowledge which would prove his innocency, of which he can have no advantage, because not known to the persons who shall take upon them his defense.' The most distinguished writers on criminal jurisprudence concur in these humane views, and all agree that no person, in a state of insanity, should ever be put upon his trial for an alleged crime, or be made to suffer the judgment of the law. A madman cannot make a rational defense, and as to punishment, furiosus solo furore punitur. * * * 'the humanity of the law of England had prescribed that no man should be called upon to make his defense, at a time when his mind was in such a situation that he appeared incapable of doing so; that however guilty he might be, the trial must be postponed to a time when, by collecting together his intellects, and having them entire, he...
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...defense. On appeal, this Court held that it was not error to require the accused to submit to such an examination. In Shipp v. State, 215 Miss. 541, 61 So.2d 329 (1952), the trial judge appointed a psychiatrist on motion of the State, and this was before the present law was enacted. In Muss......
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