State v. Farrell

• Decision Date: 14 July 1943
• Docket Number: 721.
• Parties: STATE v. FARRELL.
• Court: North Carolina Supreme Court

26 S.E.2d 322

223 N.C. 321

STATE v. FARRELL.

No. 721.

Supreme Court of North Carolina

July 14, 1943

SEAWELL and DEVIN, JJ., dissenting.

Criminal prosecution on indictment charging the capital felony of rape.

On March 23, 1943, defendant was arrested and imprisoned charged with the rape of his stepdaughter about 8 years of age. A term of criminal court then being in session, a bill of indictment was promptly returned by the grand jury.

The defendant being without means to employ counsel, the court on Saturday March 27, 1943, assigned Hon. R.H. Sykes as counsel to represent him. The defendant was thereupon duly arraigned and entered his plea of "not guilty." (He was later permitted to withdraw this plea and enter a plea of "not guilty by reason of insanity.").

On Monday March 29, another term of court for the trial of criminal cases was convened with Burgwyn, S.J., presiding. On that day counsel for defendant appeared and moved for time in which to have defendant observed by a psychiatrist or alienist. The court thereupon directed that Doctor Owens of the State Hospital at Raleigh be summonsed to come to Durham and observe the defendant. This he did, but neither the length of the observation nor the result thereof is made to appear.

On March 31, 1943, the court set the case for hearing on Thursday, April 1, at 2:30 P.M., and ordered a special venire from Orange County.

On the morning of April 1, "to meet the ends of justice," an order was entered directing that defendant be taken to Duke Hospital for observation and examination by Doctor Lyman, a psychiatrist.

Immediately upon the call of the case for trial, counsel for the defendant filed the following written petition and motion:

"R.H Sykes, being first duly sworn, deposes and says:

"That on Saturday, March 27, 1943, I was appointed by Judge J.J Burney, Judge Presiding at the March Criminal Term of Durham County Superior Court, as attorney to represent Andrew Wilson Farrell.

"That said defendant is charged by Bill of Indictment of the Grand Jury of the crime of committing rape upon his own stepdaughter, eight years of age, the crime having been committed March 23, 1943.

"That promptly after my first interview with the said defendant, I was of the opinion that he was insane and unable to prepare his defense, and asked permission of the Court to have him examined by experts to determine his sanity or insanity. That such permission was allowed, and (I) immediately contacted the head of the Department of Psychiatry of Duke University to make such examination. I was informed that owing to the stress of other engagements it would be impossible to start such an examination until Thursday, April 1, 1943. That application was made to the Court for a continuance of the trial until the next term on the ground that sufficient time was not allowed for me to properly prepare the case, which involved the life or death of the prisoner. Upon disallowance of said motion for continuance, the Department of Duke University stated that they would endeavor to make the examination in time for the trial set for Thursday, April 1. The examination has not now been completed, and I have been unable to have any interview with the experts as to what their conclusions are as to the defendant's mental condition.

"That the defendant has no relatives in Durham County other than his wife and the stepchild upon whom it is charged he committed the crime; has no money or property out of which to defray the expenses of preparing the trial; that the defendant was born and raised at Hallsboro, in Columbus County, North Carolina, where his mother now resides, and she is a woman without property, whose husband is now confined to his bed with paralysis. I am informed that many of the people who have known the prisoner from his childhood would be able to testify as to his insanity, but I have not had time to confer with them, or obtain means of having them come to Durham for this purpose. Owing to the imminence of the trial, there has been no opportunity to have depositions of these people taken for use at the trial.

"I have given most of my time during the intervening five days to the preparation of the case, but owing to the gravity of the charge, and the severity of the punishment in case of conviction, I am of the opinion that the proper preparation cannot be made for trial at this term of Court.

"I respectfully move the Court that this case be continued for this term to be tried at a subsequent term of Criminal Court for Durham County, the next term being set for May, 1943, in order to give sufficient time for a proper preparation of the case."

The motion for continuance was denied. In respect thereto the court made the following entry:

"The Court finds as a fact that the defendant was indicted by the Grand Jury of Durham County during the week ending May 27th; that on Saturday of said week, at the time of and immediately prior to the defendant's arraignment upon the bill, counsel was assigned to him, to-wit, Honorable R.H. Sykes, and that upon his arraignment he entered a plea of not guilty and for his trial placed himself upon God and his Country; that on Monday of the following week counsel appeared before the Court and stated that he desired time in which to secure observation of the defendant by psychiatrists or alienists. Whereupon the Court directed that Doctor Owens, of the State Hospital in Raleigh, should come to Durham and observe the defendant; that on Tuesday, the said Doctor Owens, at the request of the Court, did come to Durham and did observe the defendant; that thereafter the court ordered that the defendant be taken from jail in the custody of the officers and carried to Duke University Hospital to be observed there by psychiatrists which were selected by the defendant's counsel, and that this was done on Wednesday afternoon and Thursday morning. That the Court was informed that the alienists or psychiatrists would be able to and would render their opinion in respect to the mental condition of the defendant on Thursday afternoon. On Wednesday morning it was suggested to the Court by counsel for the defendant by affidavit that he thought the proper ends of justice would be met by obtaining a jury from another county than Durham County and the Court being of the opinion that such was the case directed that a special venire of one hundred persons should be summonsed from Orange County to be present in the courtroom at 2:30 on Thursday, April 1, from which panel the jury to try the case should be chosen. That this motion was submitted after the one hundred men, or such of them as had been served, had presented themselves at Court for service on the jury. In respect to any witness which this defendant may desire to have brought here from Columbus County, the Court now directs that the Sheriff of this county, or one of his deputies, shall immediately go to Columbus County with such subpoena as the defendant's counsel may see proper to issue and subpoena each and every one of such witnesses as may be found in said county. And the court further directs that the County of Durham shall defray the expenses of any and all witnesses which this defendant's counsel may see fit to summons from Columbus County or any other county whom he may deem necessary to testify in respect to the mental condition, past and present, of the defendant."

Pursuant to the directions of the court a subpoena was issued April 1, directed to the sheriff of Columbus County commanding him to summons for defendant the witnesses named therein to appear on April 2, at 9:30 A.M. The return of the subpoena does not show which of these witnesses were actually subpoenaed but two appeared and testified in behalf of the defendant.

During the progress of the trial the prisoner offered in evidence the unverified statement or report of Doctor Lyman, the psychiatrist, which is as follows:

"Duke University

"Durham

"North Carolina

"School of Medicine

"Department of Neuropsychiatry

"Reply to undersigned.

"April 1, 1943

"Judge Robert H. Sykes

"410-11-12 Geer Bldg.

"Durham N.C.

"Dear Judge Sykes:

"On the morning of April 1, 1943, I had an interview with Andrew Wilson Farrell in the presence of Sheriff Belvin and two other men. The impression I got from this interview and from the report made by Dr. Adams is as follows:

"In my opinion, Farrell is not lacking in sufficient intelligence to understand the nature and meaning of the crime for which he is charged.

"It is further my opinion that Farrell is aware of the social responsibility for maintaining virginity in women, except when legally married to them. He made specific statements to this effect. Although he refrained from making any clear and positive answers with respect to maintaining sexual innocence of children, his silence implied awareness of responsibility toward them as well.

"There is a bare possibility that Farrell is suffering from a disease which may rob one of 'moral judgment' namely, syphilis in the form of demntia paralythica or general paralysis. He gave a history suggesting a venereal disease which may have been syphilis, he stated that he had some treatment, but the amount he indicated is not adequate to guarantee against the late development of general paralysis. This possibility seems very unlikely. He showed no tremors and speech changes. However, this disease has not been positively ruled out by my examination.

"There is only one valid argument which impressed me as feasible for his defense in the eyes of the law, as I know it: He consistently maintained that he had been drinking and that he could not remember what he did. I do not have evidence to show that he was sufficiently under the influence of...