State v. Bishop, 27-69

• Decision Date: 02 December 1969
• Docket Number: No. 27-69,27-69
• Citation: 128 Vt. 221,260 A.2d 393
• Parties: STATE of Vermont v. Wilfred P. BISHOP.
• Court: Vermont Supreme Court

Page 393

260 A.2d 393

128 Vt. 221

STATE of Vermont v. Wilfred P. BISHOP.

No. 27-69.

Supreme Court of Vermont.

Dec. 2, 1969.

James M. Jeffords, Atty. Gen., and William T. Keefe, Asst. Atty. Gen., for the State.

Charles J. Adams, Waterbury, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

SHANGRAW, Justice.

A Washington County Grand Jury returned a true bill against the respondent concerning a shooting incident which occurred on October 4, 1968. He was thereupon indicted for disturbing and breaking the public peace by assaulting his wife, Florence Bishop, with a .22 caliber revolver.

On arraignment respondent entered pleas of not guilty and not guilty by reason of his insanity. Thereafter he was tried by jury in Washington County Court and found guilty.

At the conclusion of the State's case, the respondent moved for a directed verdict of not guilty by reason of insanity and for a directed verdict of acquittal. The same motions were renewed at the conclusion of all of the evidence. He moved for a mistrial by reason of comments made by the State's Attorney during his summation to the jury. Respondent excepted to certain portions of the court's charge. Following the verdict, he moved that the verdict rendered be set aside and a new trial granted, and also, that the court enter a judgment of acquittal notwithstanding the verdict. All of these motions were denied.

The issues in this case on appeal are in general whether there was sufficient evidence to sustain or support a verdict and judgment of guilty; whether a mistrial should have been declared because of a comment by the State's Attorney during his summation; and, whether the court's instructions to the jury on the subject of sanity or insanity were correct, complete and proper.

For all practical purposes, the facts with respect to the actual assault are undisputed. No evidence was offered by the respondent denying that he had committed the alleged offense. The only material area of disagreement in the case, as between the State and the respondent, relates to respondent's sanity or insanity at the time of the alleged assault.

The respondent and Florence Bishop had been married for thirty-one years prior to the date of trial which was held on January 22 and 23, 1969. They were living in Graniteville, Vermont, at the time of the assault in question.

Their married life had been happy until about five years previous to the trial. Marital discord arose between them and during the last year Mrs. Bishop had considered seeking a divorce. The most recent discussion between the Bishops about a divorce had been just before Mrs. Bishop left her home on a Tuesday evening. She did not see the respondent again until he assaulted her on Friday of that week, nor did she inform him of her whereabouts, or with whom she was staying.

The respondent had been employed by the Rock of Ages Corporation for fifteen years. His most recent employment was in the capacity of a stock man. He was conscientious in his work and had a good work record.

Mrs. Bishop was employed at the Rock of Ages Capacitor Plant on South Main Street, Barre Vermont. Her daily shift ended about 3:30 P.M. and for about three weeks she had been transported home after work by a Mrs. Millie Meigs.

The alleged assault with a .22 caliber revolver was committed by the respondent by shooting Mrs. Bishop in the stomach while she was approaching the Meigs' car in the plant parking lot after she had ended her day's work on Friday, October 4, 1968. The shot was not fatal and Mrs. Bishop testified at the trial.

The respondent's health had been good up to about the time of the incident in question. At the time of trial he could not recall which days he worked or did not work during the week previous to the shooting. When he did work that week he could not concentrate, got worked up, was sick, vomited, and had to leave work on two or three occasions. On the morning of the shooting he left work for these reasons and went bird hunting.

The following persons observed the appearance of the respondent at about the time of, or shortly after the shooting, and in part testified as follows: Mrs. Florence Bishop,-he was normal; Mrs. Phyllis Mercier,-he had a dazed appearance and was restless; Mrs. Doris Lamphere,-his facial expression was just blank; Officer Thomas C. Mekklesen,-he appeared to be rational, his speech was normal and coherent, he cried; Donald Denko,-except for some tears in his eyes and being remorseful, he appeared normal; State Police Officer Nelson Lay,-there was nothing unusual about him; Chief of Police, Floyd Chandler,-nothing unusual; Donald Gauthier,-he didn't smoke a cigarette in his usual manner, didn't clearly or fully answer questions, had been crying and his appearance and facial expressions were not the same as in the past.

Donald Carpenter, a fellow employee, testified that shortly before the shooting, Mr. Bishop was easily upset while at work and appeared to be tense, ragged, disturbed and under great strain and that his work was not up to par.

Dr. William G. Young, of Burlington, Vermont, a psychiatrist, with thirty-five years of experience in this field, was the only expert witness who testified as to the sanity or insanity of the respondent. Following respondent's arraignment he was committed to the Vermont State Hospital, Waterbury, Vermont, for examination and on October 14, 1968 Dr. Young examined him for about one and one-half hours. During the trial Dr. Young was called as a witness by the State and later by the respondent in his defense.

His testimony and opinion were to the effect that Mr. Bishop was suffering from a mental defect or disease at the time of the shooting that the type thereof was 'dissociated reaction', that is, he was acting out of character with his inner personality, the sort of behavior that one sees when a person isn't really thinking of what he is doing; that such a condition would include a period of amnesia which would not necessarily have to be of any particular duration; that at the time of the examination, Mr. Bishop's recollection of what happened at the time of the shooting was vague and that he recalled little of what happened between the time when he parked his car in the parking lot and the time when he found himself with his wife waiting for the authorities to arrive; that the period of non-recall or non-recollection of events, i. e. from the time he parked the car until he found himself waiting for the authorities, was a sufficient period of amnesia to support his opinion that, Mr. Bishop was suffering from a mental illness or dissociated reaction at the time of the assault; that he was suffering from a traumatic mental condition and mental disease at the time of the shooting, and that this condition could have affected his mind considerably so that he would act differently than under ordinary circumstances; that it was possible that the time of the shooting, his mind was governed by an uncontrollable and irresistible impulse to shoot Mrs. Bishop which was produced or grew out of a traumatic mental condition which he was unable to resist; and that the trauma which contributed to the mental disease or condition of Mr. Bishop at the time of the shooting included Mrs. Bishop's talk of divorce and her leaving home without telling him where she was going or where she was living.

Dr. Young testified that the respondent was sane at the time of his examination on October 14, 1968. In referring to respondent's condition at the time of the shooting, the doctor further expressed the opinion that Mr. Bishop's mind was seriously impaired, and that he was temporarily insane at that time.

The test of insanity as a defense in criminal cases in this State appears in 13 V.S.A. § 4801 and is as follows:

(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks adequate capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

(2) The terms 'mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct. The terms 'mental disease or defect' shall include congenital and traumatic mental conditions as well as disease.

In view of the testimony of Dr. Young and lay witnesses, we are led to the following question;

Is the evidence in the case such that the jury could find beyond a reasonable doubt that the respondent was sane at the time of the alleged commission of the crime?

This question was properly preserved for this Court's review by suitable motions of the respondent.

A motion for a directed verdict and a motion for judgment notwithstanding the verdict are the same in nature and require that the evidence be viewed in the light most favorable to the party against whom the motion is made. Baldwin v. State, 126 Vt. 70, 71, 223 A.2d 556; LaFaso v. LaFaso, 126 Vt. 90, 95, 223 A.2d 814. While this is a criminal case, the rule in passing upon such motion is the same as in civil cases. State v. Ballou, 127 Vt. 1, 3, 238 A.2d 658. Here, the evidence must be taken in the light most favorable to the State. State v. Shuttle, 126 Vt. 379, 383, 230 A.2d 794.

The test laid down in passing upon these motions is whether the State introduced evidence fairly and reasonably tending to show respondent's guilt, or, in other words, whether the jury on the evidence was justified in finding the respondent guilty beyond a reasonable doubt. State v. Ciocca, 125 Vt. 64, 73, 209 A.2d 507; State v. Ballou, supra, 127 Vt. page 3, 238 A.2d 658.

When evidence appears in a criminal prosecution to indicate the respondent did not posses the requisite mental capacity to make him criminally responsible, it becomes the duty of the prosecution to establish, beyond a reasonable doubt, the respondent's sanity as an essential ingredient of the crime. Insanity is...