State v. Kelly

• Decision Date: 11 April 1964
• Docket Number: No. 42457,42457
• Citation: State v. Kelly, 391 P.2d 123, 192 Kan. 641 (Kan. 1964)
• Parties: STATE of Kansas, Appellee, v. Virgil Eugene KELLY, Appellant.
• Court: Kansas Supreme Court

Page 123

391 P.2d 123

192 Kan. 641

STATE of Kansas, Appellee, v. Virgil Eugene KELLY, Appellant.

No. 42457.

Supreme Court of Kansas.

April 11, 1964.

Rehearing Denied May 19, 1964.

Syllabus by the Court

1. It is the policy of the law of this state not to try persons while they are insane, and G.S.1949, 62-1531 contemplates that when an accused is afflicted with any of the types of insanity or mental disability specified therein, or any claim is made in his behalf that he is so afflicted, either before or during the trial, and before the verdict is rendered, it becomes the duty of the district court and counsel of record to ascertain by one of the statutory methods whether he is in a fit mental condition to be proceeded against.

2. It is the district 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 its own initiative. Whether a district court on its own initiative should order an inquiry to determine the sanity of an accused at or during the trial is a matter addressed to the discretion of the court and its decision will not be disturbed in the absence of abuse of sound judicial discretion.

3. On appellate review an accused has the burden of proving abuse of discretion by the district court in failing on its own initiative to order an inquiry as to the sanity of the accused at the time of trial, and a strong showing is required to establish such abuse of discretion.

4. The record in a criminal action prosecuted under the provisions of G.S.1949, 21-734, is examined, and it is held: No reversible error was committed (1) by the district court's failure during the trial to order an inquiry on its own initiative concerning the defendant's sanity, and (2) in approving the verdict of guilty and in overruling the defendant's motion for a new trial. It is further held: There is nothing in the record to support the defendant's claim that he was denied the effective assistance of counsel by reason of his counsel's failure to ask the district court to stop the trial and request the appointment of a commission to determine his sanity.

James E. Fussell, Leavenworth, argued the cause and was on the briefs for appellant. Appellant was on the brief pro se.

Edward J. Chapman, Jr., County Atty., Leavenworth, argued the cause and was on the briefs for appellee.

FATZER, Justice.

On August 3, 1960, while the defendant, Virgil Eugene Kelly, was confined at hard labor in the Kansas State Penitentiary at Lansing for a term less than life, and while working outside the walls of the prison as a trusty, he escaped. He was apprehended and returned to the custody of the warden to serve the sentence previously imposed. Thereafter the defendant was charged, tried and convicted by a jury in Leavenworth County with the violation of G.S.1949, 21-734 which makes it a felony to escape from the custody of prison officials under the foregoing circumstances and prescribes a penalty of not exceeding three years, to commence at the expiration of the original term of imprisonment.

Following the trial the defendant, by and through his attorney, filed a motion for a new trial which was considered by the district court on November 18, 1960, and overruled. On the same day, the court imposed sentence upon the defendant in accordance with the provisions of G.S.1949, 21-734, and sentenced him to confinement at hard labor in the Kansas State Penitentiary for a term not exceeding three years, the sentence to begin at the expiration of the original sentence then being served by the defendant.

The defendant timely filed this appeal pro se and prepared and filed his abstract and brief pursuant to Rule No. 5 of this court. Upon his application to the district court in accordance with Prefatory Rule No. 1(f) (192 Kan. II) for the appointment of counsel to prosecute his appeal, the court appointed Mr. James E. Fussell, an able and experienced member of the Leavenworth County Bar.

We shall refer to the parties as the state and the defendant.

Following his appointment, counsel filed a supplemental brief on behalf of the defendant presenting two questions in addition to those set out in the defendant's brief pro se. The questions arise out of testimony given by the defendant on cross and redirect examination during the trial, to the effect that he had served in the Navy; that during his Naval service he had trouble with his mental faculties; that he had received mental treatment while in the service, and that he was given an honorable medical discharge from the Navy for his mental condition. It is first claimed the district court erred in not stopping the trial and ordering a commission appointed pursuant to G.S.1949, 62-1531, to examine the defendant to determine whether he was insane, unable to comprehend his position, and make his defense. It is further claimed that the defendant's trial counsel improperly represented him when he failed to ask the court to stop the trial and request the appointment of a commission pursuant to the statute to determine the defendant's sanity.

The question of the competency of any defendant tried for a felony is a most vital matter. It is the policy of the law of this state not to try persons while they are insane. Our statute, G.S.1949, 62-1531, and our decisions, state v. Ossweiler, 111 Kan. 358, 207 P. 832; State v. Brotherton, 131 Kan. 295, 302, 291 P. 954; State v. Lammers, 171 Kan. 668, 237 P.2d 410, and State v. Severns, 184 Kan. 213, 336 P.2d 447, contemplate that when an accused is afflicted with any of the types of insanity or mental disability specified in the statute, or any claim is made in his behalf that he is so afflicted, either before, or during the trial and before the verdict is rendered, it becomes the duty of the court and counsel of record to ascertain by one of the statutory methods whether he is in a fit mental condition to be proceeded against. It is a basic requirement of our law that a proper determination of the competency of the defendant should be made in every case where a real doubt is raised as to his competency. In State v. Badders, 141 Kan. 683, 42 P.2d 943, it was said:

'* * * When during a trial it is brought out by the testimony of any witness, or is called to the attention of the court by any one connected with the case, that the defendant then on trial is insane, or that there is a serious question as to his sanity at that time, it is the duty of the court to stop the trial and make an inquiry concerning that matter. State v. Detar, 125 Kan. 218, 263 P. 1071. * * *' (141 Kan. l. c. 686, 42 P.2d l. c. 945.)

When a proper showing of insanity is made, the law in effect makes the application for an inquiry for the defendant. No formal application is necessary under such circumstances. (State v. Brotherton, supra; State v. Ossweller, supra.)

The same question here urged was presented in State v. Collins, 162 Kan. 34, 174 P.2d 126, and it was said:

'From these salutary and humane principles this court has no desire to detract. They are justly designed for the protection of persons to be tried for crimes when they are incapacitated to properly defend themselves. On the other hand they are not intended to furnish a technical means of nullifying just verdicts solemnly reached by judicial process. In order to reverse the trial court on the instant complaint we would be obliged to hold, as a matter of law, the record compelled the trial court to entertain a real doubt with respect to appellant's sanity or capacity to make a proper defense. The question of such doubt addressed itself to the sound discretion of the trial court. It was the trial court in whose mind a real doubt of sanity or mental capacity to defend had to be created. * * *' (162 Kan. l. c. 39, 174 P.2d l. c. 131.)

See, also, Brewer v. Hudspeth, 166 Kan. 263, 269, 200 P.2d 312, and State v. Smith, 173 Kan. 813, 815, 252 P.2d 922.

In applying our statute (G.S.1949, 62-1531) the test of a defendant's sanity is not the so-called M'Naghten or 'right and wrong' rule. That rule concerns sanity in the sense of criminal responsibility for an act. (State v. Hickock & Smith, 188 Kan. 473, 363 P.2d 541; State v. Latham & York, 190 Kan. 411, 428, 375 P.2d 788.) The question here presented concerns sanity for the purpose of being triable. Sanity in this respect is determined by appraising the present ability of the defendant to understand the nature and purpose of the proceedings taken against him and his ability to conduct his own defense in a rational manner. (State v. Brotherton, supra; State v. Badders, supra.) If the district judge has a real doubt as to the sanity of the defendant, or from his observation, reasonable claim, or credible source, he concludes there is a real doubt as to the defendant's mental condition to comprehend his situation or make his defense, it is the duty of the judge to order the inquiry even though not requested. (State v. Collins, supra; Brewer v. Hudspeth, supra.)

As previously indicated, whether a district court on its own initiative should order an inquiry into the...