State v. Bethune

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: GARY
• Citation: 88 S.C. 401,71 S.E. 29
• Decision Date: 20 April 1911
• Parties: STATE. v. BETHUNE.

71 S.E. 29
88 S.C. 401

STATE.
v.
BETHUNE.

Supreme Court of South Carolina.

April 20, 1911.

1. Criminal Law (§ 981^*)—Appeal—Remand —Subsequent Proceedings—Resentence. Where defendant was called on to show cause why he should not be resentenced after affirmance of his conviction, and pleaded that he was then insane, and that issue was ordered to be submitted to a jury, the court was not in error for failing to explain the indictment to him. or to ascertain whether defendant understood the nature of the offense of which he had been convicted; all questions as to his mental capacity being for the jury.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2497, 2498; Dec. Dig. § 981.*]

2. Criminal Law (§ 1042*)—Appeal—Objections Below.

Where the question whether the issue raised by a plea of present insanity, made by defendant after affirmance of his conviction, when called on to show cause why he should not be resentenced, should be tried by the jurors then in attendance for the trial of civil and criminal causes, or by a commission in lunacy, was not raised in the trial court, it cannot be raised on appeal from the resentence after a finding by a jury that defendant was sane.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2650; Dec. Dig. § 1042.*]

3. Jury (§ 21*)—Right to Jury—Plea of Insanity—Sentence.

In the absence of statutory regulation, the question of the sanity of a defendant, called up for resentence after affirmance of a conviction, is properly submitted to a jury.

[Ed. Note.—For other cases, see Jury, Cent. Dig. § 143; Dec. Dig. § 21.*]

4. Criminal Law (§ 1042*)—Appeal—Objections Below.

An objection to the form of submission to the jury of the issue of present insanity, or to the oath administered to the jurors, when not made below cannot be raised on appeal.

[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 1042.*]

5. Criminal Law (§ 1162*)—Appeal—Harmless Error.

Error not shown to be prejudicial is not ground for reversal.

[Ed. Note.—For other cases, see Criminal Law, Cent Dig. § 3085; Dec. Dig. § 1162.*]

6. Criminal Law (§ 48*)—Defenses—Insanity.

The question of defendant's knowledge of right from wrong is necessarily involved in a plea of insanity.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 53-58; Dec. Dig. § 48.*]

Appeal from General Sessions Circuit Court of Clarendon County; R. W. Memminger, Judge.

"To be officially reported."

Willie Bethune was convicted of murder, and he appealed, and the judgment was affirmed. Upon petition that since conviction defendant had become insane, the Supreme Court stayed the remittitur, but thereafter the stay was revoked, with permission to the defendant to plead, when called upon to say why a new day should not be assigned for execution, that he was then insane. Thereafter he was called for resentence, and pleaded that he was insane, and the question being left to the jury they found against him, and he was resentenced. From the judgment, defendant appeals. Affirmed.

The following are the exceptions:

"(1) That his honor erred in not explaining to the defendant the indictment and the nature of the offense of which defendant had been convicted, and ascertaining in the proper manner if the defendant understood the same, before compelling him to be arraigned for resentence.

"(2) That his honor erred in ordering the defendant to submit the question of his then

[71 S.E. 30]

sanity to the jury in attendance upon the regular term of court of general sessions for Clarendon county, in that the said jury had been summoned to try criminal cases and civil cases by consent, and that the question of defendant's insanity was improperly submitted to said jury over the protest of his counsel, in that such question was not one of criminal guilt, or involving a trial of the facts constituting a criminal offense, nor ah action civil in its nature, and should have been referred to a commission in lunacy, to pass upon the sanity of defendant, and to have reported the conclusion of such commission to the court.

"(3) That his honor erred in overruling the motion of defendant's counsel that the question of defendant's sanity or insanity be referred to a board of physicians for determination, and in ordering that that question be submitted to the jury then in attendance upon the court of general sessions, for that is not the proper manner to determine the question of the sanity of one called upon to receive sentence, but such question should have been referred to the judge of the court of probate, an order appointing a commission of three appointed by the court of probate, and a jury of 24 summoned to try the question of the sanity or insanity of the defendant.

"(4) That his honor erred in forcing the defendant to submit the question of his sanity to a jury in said court, in that his counsel moved that the same be referred to a board of examining physicians, it was the duty of his honor to have referred the said question to the probate judge for determination in accordance with the terms of the act of the General Assembly, entitled 'An act to regulate the practice with reference to the appointment of a committee for persons non compos mentis, ' approved February 26, 1910 (26 St. at Large, p. 754), in that the defendant was denied by the order of his honor the remedy provided by the terms of the said act.

"(5) That his honor erred in forcing the defendant to submit the question of his then sanity to the said jury, in that there is no provision of law of force in this state authorizing the question of a convicted defendant's sanity to be determined in the manner here employéd, and that such manner is and cannot be reasonably calculated to ascertain the truth of sanity or insanity of a defendant, and that his honor should have had the defendant examined by physicians.

"(6) That his honor erred in forcing the defendant to trial upon said question in said manner, in that the proper method, other than the method provided for in the act of 1910, is upon an examination by two or more physicians under the direction of the probate court; such court having exclusive original jurisdiction of matters in lunacy, except where the defense of non compos mentis is made at trial upon the merits of the case.

"(7) That the manner pursued by his honor, over defendant's counsel's...