State v. Collins

• Decision Date: 09 November 1946
• Docket Number: 36598.
• Citation: State v. Collins, 162 Kan. 34, 174 P.2d 126 (Kan. 1946)
• Parties: STATE v. COLLINS.
• Court: Kansas Supreme Court

174 P.2d 126

162 Kan. 34

STATE v. COLLINS.

No. 36598.

Supreme Court of Kansas

November 9, 1946

Rehearing Denied Dec. 13, 1946.

Appeal from District Court, Reno County; F. B. Hettinger, Judge.

Jack C Collins was convicted of felonious assault with intent to kill, and he appeals.

Judgment affirmed.

Syllabus by the Court.

1. Whenever counsel for defendant or the state becomes possessed of knowledge of a defendant's lack of mental capacity to comprehend his situation or to properly make his defense, it becomes the duty of each to promptly bring the matter to the attention of the court.

2. The manner in which the necessity for an inquiry concerning a defendant's insanity is raised is not of much importance. If the court learns from observation, reasonable claim or credible source that there is real doubt of defendant's mental condition to comprehend his situation or make his defense it is the duty of the court to order an inquiry concerning the matter.

3. It is the trial court in whose mind a real doubt of sanity or mental capacity to properly defend must be created before that court is required to order an inquiry solely on his own initiative. The necessity for an inquiry under such circumstances addresses itself to the discretion of the court and its decision will not be disturbed in the absence of abuse of sound judicial discretion.

4. The general rule is that a witness may be cross-examined for the purpose of disclosing his interest in the action, his hostile feeling, and the extent thereof, in order that the jury may determine the weight and credibility it will accord all, or any portion, of his testimony.

5. Every error does not necessarily affect the substantial rights of a party and on appeal, under the direction of G.S.1935, 62-1718, the Supreme Court of this state must give judgment without respect to technical errors or defects, or to exceptions which do not affect substantial rights of the parties.

6. The record in a criminal action prosecuted under the provisions of G.S.1935, 21-431 examined, and held: No reversible error was committed in (a) the court's failure to order an inquiry on its own initiative touching defendant's sanity; and (b) the admission or rejection of testimony.

Don Shaffer, of Hutchinson (Abraham Weinlood, of Hutchinson, on the brief) for appellant.

Harry H. Dunn, Co. Atty., of Hutchinson (A. B. Mitchell, Atty. Gen., and Fred C. Preble, Deputy Co. Atty., of Hutchinson, on brief), for appellee.

WEDELL Justice.

The defendant, Jack C. Collins, was convicted of felonious assault on one Everett Vernon Little with intent to kill under the provisions of G.S.1935, 21-431, and appeals.

The first error charged is the failure of the trial court to make an inquiry concerning appellant's sanity before or during the trial. The date of the alleged offense was October 31 1945. The trial began January 14, 1946, and ended January 16th.

Prior to the trial appellant's counsel requested a continuance, which was denied. Neither the length of the requested continuance nor the alleged grounds therefor are set out. In support of the motion or request appellant's witness, Doctor Harry E. Blasdel, on January 10, 1946, testified, in substance: He had been treating defendant since July, 1943, for tertiary stage of syphilis; defendant was in a highly nervous state and he (the doctor) wished to give him a spinal puncture in order to determine the nature or character of future treatment; a man in defendant's condition without proper treatment was liable to crack up at any time, particularly with the worry of a case such as this on his mind; the puncture would be the logical thing to do at this stage of treatment; defendant had been hard to handle; he had tried for two years to induce defendant to consent to the making of the puncture.

In the course of that testimony the court asked the doctor the following question and received this answer:

'Do you think it would be very injurious to Mr. Collins if you would put off the puncture for a week? A. No, sir, not at all.'

In commenting on the motion for continuance the court said:

'I can't see why it is necessary at this time, after the Doctor here has been treating him for two years, why it is necessary to put the trial off. A week from today he will be through with the trial and he can have the spinal puncture then. The Doctor says it wouldn't be injurious to put it off a week. In other words, it will be just from Monday until the following Thursday; at the very least, it will be just postponing the spinal puncture three days, and according to the Doctor's testimony, I don't think that three days will make very much difference.'

The foregoing constitutes all that transpired on the hearing for a continuance. Failure to grant the continuance is not one of the specifications of error. Appellant relies on no other testimony touching his condition at the time of the hearing of the motion for a continuance or during the trial. While this is the only testimony with respect to appellant's condition prior to trial there was testimony introduced during the trial which tended to show appellant's condition on the night of and immediately after he had assaulted Everett Vernon Little, approximately two and one-half months prior to the trial. Appellant testified:

'Q. Now, on the night,--at the present time and at more particularly on the night of October 31, 1945, what was the condition of your health, Mr. Collins? A. Well, it was very bad.

'Q. Have you had any attacks of, paralysis attacks, locomotor ataxia, anything of the kind? A. Three.

'Q. Before that time? A. Before that time.

'Q. How does that effect your body, your equilibrium? A. It causes a loss of the matter of balance; that is what the doctor calls it.' (Our italics.)

Appellant's witness, a minister and mayor of the city of Hutchinson, testified concerning appellant's condition after he had assaulted Little, in substance, as follows:

He was riding in a police car on that night and picked up a radio report of the shooting at the pool hall; he went there; he had met Collins frequently for several years and considered him usually a rather interesting conversationalist who talked sensibly; Collins usually had a liquor breath and he did have that evening, but he appeared not to be drunk then; Collins was dazed, hysterical and had a crazy expression on his face; the witness saw Collins later at the Police Station; Collins laughed hysterically and did not speak coherently; he was muttering, cackled like a 'bunch of hens,' laughed a great deal, a peculiar type of hysterical laughter; he had a crazy peculiar stare and was not rational at that time in the witness' opinion.

Doctor Walker, the city physician and appellant's witness, testified concerning appellant's condition at the same time and place, in substance, as follows:

He treated Collins the night of the shooting for wounds on the back top part of the head; there were two severe cuts not made by a sharp instrument; Collins' head was bleeding and his head and clothing were fairly well saturated with blood; five or six clamps were used on the wounds and the wounds dressed; Collins seemed jovial and his talk was not remorseful; he seemed to talk a little more than an ordinary person would under the circumstances.

On cross-examination the same doctor was asked and answered as follows:

'Q. He acted rational, didn't he? A. What?

'Q. He was rational? A. Oh, yes.'

Did the trial court commit reversible error in failing to make in inquiry on its own initiative concerning appellant's sanity in the light of the facts developed prior to or during the trial? No claim was made in the trial court appellant was insane or incapable of making an adequate defense. Neither appellant nor his counsel requested the court to make an inquiry for the purpose of determining capacity or mental condition. It appears a request was made for a continuance of the trial only for the purpose of making a spinal puncture. The doctor's stated purpose for desiring to make the puncture was to determine the nature and character of proper future treatment. Appellant's physician had been endeavoring for two years without success to persuade appellant such a puncture should be made. The doctor testified the puncture could be made as well after the trial as before. The purpose of the puncture, therefore, was not to eliminate a condition which prevented appellant from making a proper defense.

We need not pursue the order denying a continuance as there is no appeal from that ruling. This does not mean, however, that we should not consider the evidence adduced in connection with the hearing for a continuance together with all other facts disclosed during the trial which may cast light on the subject of appellant's sanity or capacity to make a proper defense. We shall consider all the pertinent facts.

The testimony of appellant's witnesses during the trial previously quoted, did not relate to appellant's condition at the time of trial but to his condition on the night after his assault on Little which was approximately two and one-half months before the trial. There was nothing in the doctor's testimony to indicate appellant's incapacity at that time. In fact, he testified appellant was rational at the time. The trial court was, of course, obliged to consider the minister-mayor's testimony in connection with other testimony in the case which disclosed what had transpired previously that night to affect appellant's condition. That testimony disclosed: Appellant was a professional gambler; he had $6,000 on his person and carried a gun; appellant, Little and others, had been shooting dice in appellant's hotel room in Hutchinson prior to appellant's assault on Little...