Smith v. State, 45213

• Decision Date: 03 March 1969
• Docket Number: No. 45213,45213
• Citation: 220 So.2d 313
• Parties: Will Allen SMITH v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 313

220 So.2d 313

Will Allen SMITH v. STATE of Mississippi.

No. 45213.

Supreme Court of Mississippi.

March 3, 1969.

Rehearing Denied March 31, 1969.

Prewitt, Bullard, Braddock & Vance, Vicksburg, for appellant.

Joe T. Patterson, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., Jackson, for appellee.

PATTERSON, Justice.

Appellant, Will Allen Smith, was indicted, tried, and convicted of the crime of murder in the Circuit Court of Warren County. He was sentenced to the state penitentiary for life. From that sentence he appeals to this Court.

We reverse and remand the case for a new trial as we are convinced the statements of the district attorney, when connected with an erroneous instruction during the argument of the case, were unnecessary, indefensible and not in rapport with minimum requirements for the conduct of so serious a matter as the trial of one for murder.

It is regrettable that the case must again be reversed as the termination of a suit has important aspects to the litigants, to the courts, and to the interests of society as a whole. These aspects, however, must be balanced with the fundamental right of every defendant to a fair and impartial trial. The defendant committed an unpardonable act, the commission of which is not denied other than by the appellant's plea of insanity, which is to state that he did not know the difference between right and wrong at the time it was committed. From antiquity civilized societies have recognized that in order to hold any person responsible for a crime it is necessary for such person to have sufficient mental understanding to form a criminal intent. Harvey v. State, 207 So.2d 108 (Miss.1968). The issue before the trial court was not whether the defendant killed Mrs. Glidewell, but whether he had the mental capacity to form a criminal intent at the time. We are aware of the gravity of the offense as well as the misunderstanding of the populace generally on the issues involved. Nevertheless, the substantive right of a defendant to a fair trial outweighs other considerations, as the principle endures while the case terminates and public opinion subsides.

The evidence establishes that about 2:30 p. m. on June 10, 1965, the appellant shot and killed Mrs. Mildred Mae Glidewell without provocation. The facts concerning this fatality are related in Smith v. State, 198 So.2d 220 (Miss.1967). They are substantially the same as in the present case and will not be repeated except to state that the testimony of the two psychiatrists, who testified in both cases, was strengthened somewhat by virtue of their reexamination of the appellant. Their testimony in this case was consistent with that of the former case in that it was still their opinion that the defendant was suffering from a major psychiatric disorder which they disagnosed as a chronic, undifferentiated type of schizophrenia. It was their opinion that because of this disorder the appellant was not capable of distinguishing right from wrong at the time he killed Mrs. Glidewell. These doctors were of the opinion that by reason of appellant's mental condition he was a menace to society and should be confined to a mental institution.

The appellant first assigns as error the action of the lower court in overruling his motions for a directed verdict at the conclusion of the State's evidence, as well as at the conclusion of all the testimony. During the course of the first Smith trial the State introduced lay testimony to prove the appellant was sane. The appellant introduced both lay and expert medical testimony that he was insane. In considering this testimony we reach the conclusion that our opinion in the first trial is still apropos: 'This evidence was sufficient to make a question for the jury to determine whether the State had met the burden of proving beyond a reasonable doubt that appellant could distinguish right from wrong at the time he shot and killed Mrs. Glidewell.' 198 So.2d at 222. It is our opinion that this assignment is not well taken.

The appellant assigns as error the granting of the following instruction:

The Court instructs the jury for the State, that in the event you should find the defendant not guilty by reason of insanity and certify that he is dangerous, then it would be the duty of the Court to commit him to the insane asylum until such time as he regained his sanity.

He contends the instruction is erroneous in that it infers that a finding of not guilty by reason of insanity would result in the defendant soon being discharged by the authorities to return to society. The instruction was apparently drawn with Mississippi Code 1942 Annotated, section 2575 (1956) in mind. This section states:

When any person shall be indicted for an offense and acquitted on the ground of insanity the jury rendering the verdict shall state therein such ground and whether the accused have since been restored to his reason, and whether he be dangerous to the community. And if the jury certify that such person is still insane and dangerous the judge shall order him to be conveyed to and confined in one of the State asylums for the insane.

We note that this statute does not designate the duration of confinement. In Gambrell v. State, 238 Miss. 892, 901, 120 So.2d 758, 762 (1960), a similar instruction was condemned by this Court. The instruction is as follows:

The Court instructs the Jury for the State that in the event you should find the defendant not guilty by reason of insanity and certify that he is dangerous, to the community, then it would be the duty of the Court to commit him to the asylum until such time as he regained his sanity at which time he would go free. (Emphasis added.)

In commenting thereon we stated:

The instruction complained of told the jury in effect that a verdict of not guilty on the grounds of insanity would result in freeing the accused. It is very probable that this erroneous instruction was partly responsible for the verdict in this case. 238 Miss. at 902, 120 So.2d at 762.

In addition to the foregoing statement, Gambrell cites with approval the case of Nelson v. State, 129 Miss. 288, 307-308, 92 So. 66, 70 (1922), a case relating to the following instruction:

'The Court instructs the jury that, should you acquit the defendant because of insanity, you may render one of the following verdicts: We, the jury, find that the defendant killed the deceased, but we further find that at the time he so killed the deceased, that he did not know the difference between moral right and wrong, and we further find that he has been restored to his reason and is not dangerous to the community.

'Or you may say: We, the jury, find the defendant guilty of killing the deceased without authority of law, but find further that, at the time, the defendant did not know right from wrong, and that the defendant has not been restored to his reason and is dangerous to the community.

'It will then be the duty of the court to order the defendant confined in the insane asylum for treatment until discharged by the authorities of such institution.'

We stated:

The principal criticism is addressed to the last two paragraphs of the instruction, which, in substance, told the jury that, if they acquitted the defendant on the ground of insanity, and found that his reason had not been restored, and he was dangerous to the community, it would then be the duty of the court to order him confined in the insane asylum for treatment, until discharged by the authorities of such institution. It is argued that the jury could infer but one thing from the latter part of this instruction, and that was that, if they acquitted appellant on the ground of insanity, and found that his mind had not been restored at the time of the trial, and that he was dangerous, he would be sent to the insane asylum and there the authorities would soon discharge him, and he would again be a free man. It is sufficient to say that the jury had nothing to do with the result of such a finding, and therefore the instruction should not have been given in that form. * * * 129 Miss. at 308, 92 So. at 70-71.

In 1 Alexander, Mississippi Jury Instructions, section 2661 (1953), which was also cited with approval in Gambrell, it is stated:

Since it is no part of the function of the jury to take account of what disposition should be made of the accused if it should find him insane, an instruction undertaken to so inform them is erroneous.

In considering the instruction in the present case we immediately note that its terms are beyond those of the statute, as it includes the words 'until such time as he regained his sanity.' We point out also that even though it does not contain the words 'at which time he would go free,' as in Gambrell, the only logical inference that could be drawn from the concluding words of the instruction, 'until such time as he regained his sanity,' would of necessity signify only temporary confinement. This diverts, we think, the attention of the jury from the real issue in the case, the defendant's sanity or insanity at the time of the shooting, to the serious problem of the protection of society in the event of his discharge.

The present instruction does not contain the word 'free' which we condemned in Gambrell, but the inference drawn from 'until such time as he regained his sanity' is, in our opinion, equally as strong and therefore equally as erroneous as the former. In this regard we note that the use of 'until discharged by the authorities of such institution,' which was specifically condemned in Nelson, is particularly analogous to the present instruction. It is the opinion of a majority of the justices that the use of this instruction was error as it permitted the jury to grope with the problem of confinement for the benefit of society when that was not the issue before it.*

The next contention of the appellant is that the inflammatory argument of the district attorney constitutes reversible error. In Smith, supra...