State v. Brotherton

• Decision Date: 11 October 1930
• Docket Number: 29,366
• Citation: State v. Brotherton, 131 Kan. 295, 291 P. 954 (Kan. 1930)
• Parties: THE STATE OF KANSAS, Appellee, v. ETHEL BROTHERTON, Appellant
• Court: Kansas Supreme Court

291 P. 954

131 Kan. 295

THE STATE OF KANSAS, Appellee, v. ETHEL BROTHERTON, Appellant

No. 29,366

Supreme Court of Kansas

October 11, 1930

Decided July, 1930.

Appeal from Cherokee district court; JOHN W. HAMILTON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Insanity--Time and Manner of Raising Issue--Duty of Defense Counsel. Under R. S. 39-237 it is the duty of an attorney as an officer of the court representing a defendant accused of crime, when he has knowledge that his client is feeble-minded at the time of the trial, to call the attention of the court to the situation as soon as the criminal case is called for trial and prior to the time the jury is called into the box for examination. The matter should be so called to the attention of the court that proceedings can be promptly taken by the court under the above statute.

2. SAME. Whenever an accused is afflicted with any of the types of insanity or mental disability covered by R. S. 62-1531, or a claim is made in his behalf that he is so afflicted, it then becomes the duty of counsel for defendant as an officer of the court to call the situation to the attention of the trial court promptly as soon as the indictment or information is filed and before the beginning of the trial thereon. If, however, the situation does not develop until after the beginning of the trial, or the accused shall become insane after beginning of the trial, or if for any other reason the matter has not been brought to the attention of the trial court before the beginning of the trial, then the mental status of such defendant should be brought to the attention of the trial court at any time after the beginning of the trial and before verdict is rendered.

3. SAME--Insanity--Manner of Raising Issue--Duty of Prosecuting Attorney. Under R. S. 39-237 and R. S. 62-1531 counsel for the state, whenever he becomes possessed of knowledge of an existing mental disability of the accused or that claim thereof is to be made in his behalf, is under the same duty to the court as counsel for the accused with reference to the matter of bringing such disability or claim thereof to the attention of the trial court.

4. SAME--Insanity--Duty of Trial Court. Under the above statutes, when any information is brought to the attention of the trial court that the defendant in a criminal proceeding lacks mental capacity, or is making a claim that he does not comprehend his situation, or is mentally incapable of properly making his defense, it becomes the duty of the trial court to act promptly and to proceed according to the statutory method which is applicable to the particular form of mental disability claimed in behalf of the accused.

5. SAME--Separate Trial of Issue of Insanity by Probate Court--Right of Appeal. Where during the trial of a person charged with crime it is made to appear to the court that the person is feeble-minded and the court remands such person to the probate court for examination, as provided in R. S. 39-237, and the proceedings in the probate court result in a decision that the person so remanded is not feeble-minded, such person does not have a right of appeal from such decision of the probate court to the district court.

6. SAME -- Separate Trial of Issue of Insanity by Probate Court -- Procedure. Where a person is remanded to the probate court under R. S. 39-237, it is not necessary to give the five days' notice required by R. S. 39-202.

7. SAME--Separate Trial of Issue of Insanity by Probate Court--Effect of Independent Hearing by District Court. Where a person is remanded to the probate court under the provisions of R. S. 39-237 and the examination made in the probate court results in a finding that the person is not feeble-minded, and thereafter the district court holds an independent hearing on its own motion, at which evidence is received and a finding made by the district judge that the person is not feeble-minded, held, that the additional hearing given by the district court on its own motion is not error.

8. SAME--Generally. Various specifications of error relative to the admission of testimony and giving and refusing of instructions examined, and held that the court did not err therein.

Spencer B. Apple, C. B. Skidmore, both of Columbus, Frank Nesbitt, F. W. Church, both of Miami, Okla., and William Sims, of Vinita, Okla., for the appellant.

William A. Smith, attorney-general, Arthur S. Brewster, assistant attorney-general, Leo Armstrong, county attorney, and Marc. G. Boss, assistant county attorney, for the appellee.

OPINION

JOCHEMS, J.:

The defendant was convicted of second-degree murder, and appeals to this court.

The record shows that the defendant and her two sons, Willie, aged fourteen, and an older boy, lived in a small frame house in Baxter Springs; that her father was a Quapaw Indian; that a girl named Bonnie Davis, sixteen years of age, whose parents lived in Hockerville, Okla., had left home and was working at Baxter Springs; that on the evening of June 11, 1929, Bonnie Davis came to defendant's home and took Willie, the defendant's younger son, to a picture show; that they returned after the show and Bonnie stayed all night at the defendant's home; that she slept in the same bed with defendant, the two boys sleeping on the floor; that about 8:30 o'clock the next morning, June 12, 1929, the body of Bonnie Davis was discovered in the rear of defendant's back yard lying in a pathway between the house and a small outdoor toilet located at the rear end of the lot; that when discovered her body was still warm. An autopsy disclosed that death was caused by a 22-caliber gunshot wound through the heart. The premises were searched. The gun was not found, but three 22-caliber shells were found underneath the floor of the toilet, having apparently been dropped through a crack in the floor. The defendant was taken to the police station for questioning. In her first statement she denied all knowledge of the gun. She also denied that Bonnie had stayed with her the previous night. After contradicting herself she later admitted that Bonnie Davis had stayed there the night before and told the officers she had found the gun beside the body and taken it to her sister's place about three blocks away, where she had hidden it. The defendant went with the officers to her sister's home, found the gun and delivered it to them. She then made a statement which was taken down in writing. Later she asked to see the mayor, and in a conversation with him relative to the matter stated that she objected to Bonnie Davis going around with her boy Willie; that she did not like Bonnie and did not want him running around with her. She stated that the killing was accidental; that in the morning she had told Bonnie to leave and not come back, and that Bonnie told her she would; that she followed Bonnie out to the toilet; then she got the gun from under her pillow and accidentally shot Bonnie. She made two statements in the county attorney's office which were taken down in writing, transcribed and signed by her.

At the trial in the district court, after the jury had been impaneled, counsel for defendant in his opening statement announced that the defendant was feeble-minded. He stated that one of the defenses was that if it should be determined that the defendant did shoot Bonnie Davis, as alleged in the information, that she was so feeble-minded at the time as to be wholly unable to appreciate the character and consequences of her act in so doing, and furthermore, that at the time of the trial the defendant was so feebleminded as to be unable to defend herself; that the testimony of responsible doctors including Doctor Carmichael, head of the state asylum for the insane at Osawatomie, would show that the defendant is feeble-minded; that she has the mind of a seven- or eight-year-old child. Thereafter the testimony of two witnesses on behalf of the state was taken and the court thereupon summarily remanded the defendant to the probate court for determination of her mental condition. The probate judge announced that under the procedure it would be necessary to serve five days' notice of hearing upon the defendant, and it being apparent that the trial would be delayed approximately a week, the court called in the jury, gave them careful admonition and excused them for one week. This permission of the jury to separate and go to their homes was done by the court over the objection of both the state and the defendant. Thereupon proceedings were had in the probate court; a hearing was had before a commission of two physicians appointed by the probate judge; evidence was introduced by the defendant and by the state, and after due consideration and after the physicians composing the commission had made a private examination of the defendant with no other person present, a decision was reached to the effect that, "Ethel Brotherton is not feeble-minded to the extent that she is unable to comprehend her position so as to be unable to defend herself in the criminal charge now pending against her in the district court. . . ." Following this decision the defendant promptly perfected an appeal to the district court. The judgment of the probate court was duly entered in the district court on October 22, 1929. The defendant, through counsel, notified the district court that an appeal had been taken to the district court from the judgment in the probate court. Thereupon the district court notified the state and the defendant that he himself was going to determine the question of defendant's feeble-mindedness and proceeded thereupon to hold a hearing upon which substantially the same testimony was introduced as had been introduced before the probate court, and following this the...