State v. Bethune

• Citation: 71 S.E. 29,88 S.C. 401
• Parties: STATE v. BETHUNE.
• Decision Date: 20 April 1911
• Court: South Carolina Supreme Court

71 S.E. 29

88 S.C. 401

STATE v. BETHUNE.

Supreme Court of South Carolina

April 20, 1911

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that since conviction defendant had become insane, the Supreme Court stayed the remittitur, but thereafter the stay was revoked, with permission to the defendant to plead, when called upon to say why a new day should not be assigned for execution, that he was then insane.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 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 an 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 employed, 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 objection, deprived defendant of his life and liberty without due process of law, in that such manner is not reasonably calculated to ascertain with any degree of definiteness the true condition of the mind of a person, or to afford a ground for the establishment of such condition with the precision ordinarily required in criminal procedure.

"(8) That his honor erred in submitting to the jury the following question, 'Whether the mental condition of the defendant is such that he can understand the meaning of punishment, and whether he be now sane, and a true verdict give according to the evidence, so help you God, whether he be now insane,' in that the question ordered and permitted to be submitted was, 'Whether he be now insane.'

"(9) That his honor erred in submitting the question to the jury as follows: 'Whether the mental condition of the prisoner at the bar is such that he can understand the meaning of punishment, and whether he be now sane; whether he be now insane'--in that he should have submitted to the jury (after having forced the defendant to trial) the following: Whether the defendant, by reason of a disease of the mind, is unable to understand the nature of the indictment upon which he was tried and convicted, his plea thereto, and the verdict thereon, when explained to him by the court, and is unable to comprehend his own condition in reference to such proceeding, and by reason thereof might make known to the court or his attorneys in charge of his defense the facts within his knowledge, if any, which would show that judgment should not be pronounced against him, especially in view of the fact that his counsel had stated that the defendant was precluded from communicating to him facts relating to after-discovered evidence .

"(10) That it appears by the record that his honor did not submit the same oath to all of the jury, in that it is stated that while the jury was being impaneled that his honor stated: 'I see that the Supreme Court says the prisoner has a right to plead that he was then insane, and so I have added to the oath, according to their statement, whether he be insane. Just swear the others with that additional oath, Mr. Clerk'--thereby depriving the defendant of a verdict or finding by the whole jury under the same oath.

"(11) His honor erred in ruling that the defendant had to establish his present insanity, in that the defendant having pleaded by his counsel his then insanity, as permitted by the order of the Supreme Court, it was incumbent upon the state to establish his sanity.

"(12) That his honor erred in asking the witness Dr. Butler the following: 'When we called upon him this morning to hold up his right hand, and he held it up, and told him to put it down, and he put it down, do you think, or not, that the man could understand that if he would be sentenced to death what it meant?'--in that the presiding judge thereby stated as a matter of fact that the defendant had put up and put down his hand when told to do so, and thereby conveyed to the jury the impression that in the mind of the court that constituted an inference or fact showing sanity in defendant, calculated to prejudice the minds of the jury against the defendant by calling to their attention an act or acts of the defendant in the course of the trial.

"(13) That his honor erred in submitting to the jury the following question: 'Is the defendant herein insane and incapable of understanding the meaning of punishment?' --in that his honor added to the question authorized to be determined by the Supreme Court that court having permitted the defendant to interpose the question of his then insanity .

"(14) That his honor having submitted a question to the jury at the beginning of the trial he erred in enlarging the question in his

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