State v. Elsea

• Decision Date: 13 October 1952
• Docket Number: No. 2,No. 42930,42930,2
• Citation: 251 S.W.2d 650
• Parties: STATE v. ELSEA
• Court: Missouri Supreme Court

Page 650

251 S.W.2d 650

STATE v. ELSEA.

No. 42930.

Supreme Court of Missouri, Division No. 2.

Oct. 13, 1952.

Charles B.Fitzgerald, Unionville, for appellant.

J. E. Taylor, Atty. Gen., Julian L. O'Malley, Asst. Atty. Gen., for respondent.

TIPTON, Judge.

In the circuit court of Putnam County, Missouri, the appellant was found guilty of assault with intent to murder, and his punishment was assessed at imprisonment in the state penitentiary for two years.

On July 23, 1951, a lunatic warrant was issued by the probate judge of Putnam County, directing the sheriff of that county to arrest the appellant and convey him to State Hospital No. 2 at St. Joseph, Missouri.

On the same day the sheriff of Putnam County, Stillman Beary, and Keith Steele, as special deputy sheriff, went to the home of appellant for the purpose of arresting him and conveying him to the state hospital. While attempting to make the arrest the appellant grabbed his shotgun and shot Keith Steele in the leg. Finally the arrest was made and appellant was taken to the Putnam County jail.

The appellant's defense was that he was insane at the time of the assault. In support of this defense, appellant produced three physicians, Dr. Orr Mullinix, Superintendent at State Hospital No. 2, Dr. Horace Thomas and Dr. Willis H. McCann, both physicians at State Hospital No. 2. Briefly, these physicians testified that the appellant was suffering from a mental disease diagnosed as dementia praecox, paranoid type; that it had its inception approximately as far back as 1942; that it was chronic and continuing; and under the facts in evidence the appellant did not know the difference between right and wrong. However, Dr. Thomas testified on cross-examination that 'you might some times catch him [when] he will' know right from wrong.

Appellant produced a number of lay witnesses who testified as to his actions and conduct during various periods of his life and they gave as their opinions that he was of unsound mind.

In May 1946 the appellant was found to be insane after a proper hearing and was sent to State Hospital No. 1 at Fulton. The diagnosis of his mental condition at that time was dementia praecox, paranoid type. In June 1947 he was paroled for six months and in June 1948 he was discharged from his parole.

In September 1950 a sanity hearing was held in Putnam County and appellant was found to be insane. He was taken to State Hospital No. 2. In December 1950 he was paroled to the care of his father, even though the physician handling his case had not recommended such parole. No legal proceedings were had to restore the appellant to the status of a sane person. In fact, at the time this alleged crime was committed, the sheriff of Putnam County was trying to arrest the appellant under a warrant directing the sheriff to arrest him and deliver him to State Hospital No. 2.

Appellant contends that the court erred in giving instruction S-5 on behalf of the state. This instruction told the jury that the law presumes a person who has reached the years of discretion to be of sound mind, and this presumption continues until the contrary is shown, and the burden of proving the defense of insanity rests upon appellant. The state's own evidence shows that the appellant was insane at the time he shot Keith Steele. Steele was aiding the sheriff in trying to arrest the appellant because he had been adjudged insane, and the very purpose of the arrest was to convey appellant to a hospital for the insane. The evidence in this record shows that the appellant's insanity was chronic and continuing. Under these circumstances its continued existence will be presumed and the burden of establishing that he...