State v. Neu

• Decision Date: 02 July 1934
• Docket Number: 32784
• Citation: State v. Neu, 180 La. 545, 157 So. 105 (La. 1934)
• Court: Louisiana Supreme Court
• Parties: STATE v. NEU

157 So. 105

180 La. 545

STATE v. NEU

No. 32784

Supreme Court of Louisiana

July 2, 1934

Rehearing Denied October 2, 1934

Appeal from Criminal District Court, Parish of Orleans; A. D Henriques, Judge.

Louis Kenneth Neu was convicted of murder and he appeals.

Affirmed.

Clarence Dowling and Charles A. Danna, both of New Orleans, for appellant.

Gaston L. Porterie, Atty. Gen., and Eugene Stanley, Dist. Atty., and J. Bernard Cocke, Asst. Dist. Atty., both of New Orleans, for the State.

BRUNOT Justice. O'NIELL, Chief Justice (dissenting).

OPINION

BRUNOT, Justice.

The defendant was indicted for the crime of murder. He was tried for that crime, and the jury returned a verdict of guilty as charged. A motion for a new trial was filed, heard, and overruled, and the defendant was sentenced to be hanged by the neck until he is dead, at such time as the Governor of the state of Louisiana shall designate in his warrant. From this verdict and sentence he appealed.

When the case was reached on the assignment docket of this court, the defendant, through his counsel, filed a motion for continuance. The motion recites that this court is composed of a Chief Justice and six associate justices; that Justice John St. Paul had retired from the bench and the vacancy caused thereby had not been filled; that, for the reason stated, the court as presently composed is not a complete Supreme Court; and that appellant is entitled to have his appeal heard by a full court. The motion concludes with the prayer that the case be continued until such time as the court shall be composed of a Chief Justice and six associate justices. This motion was filed, submitted, and overruled. In support of this ruling, it is only necessary to cite section 4, art. 7, of the Constitution of 1921.

There are fourteen bills of exception in the transcript.

Bill No. 1.

Before the accused was arraigned, his counsel pleaded the unconstitutionality of Act No. 136 of 1932. The motion alleges that the act deprives the accused of a trial by jury, that it deprives him of his day in court, and that it does not repeal articles 268, 269, 270, 271, 272, and 273 of the Code of Criminal Procedure.

After a hearing thereon, the court overruled the plea, and this bill was reserved to that ruling. The court has attached to the bill the following per curiam:

"In my opinion, Act No. 136 of 1932 is constitutional. The fact that the accused is deprived of a hearing before a jury of his plea of present insanity does not render the act unconstitutional. The plea of present insanity does not affect the guilt or innocence of defendant, and may be tried by the trial judge alone. The further fact that the act makes it necessary that the accused make a reasonable showing of insanity before the court might be compelled to grant such hearing does not make the act unconstitutional. Legal remedy is within the province of the appellate court to order such a hearing, in the event a proper showing has been made by an accused. In the case at bar, accused did make a proper showing, and was granted a hearing upon his plea for same; hence he is without interest to attack the act on this ground. The act palpably on its face, as well as by its inconsistent provisions, repeals articles 268, 269, 270, 271, 272 and 273 of the Code of Criminal Procedure."

The articles which the court holds are repealed by Act No. 136 of 1932 provide as follows: Article 268: When a plea of insanity is filed, the judge must appoint a lunacy commission, composed of the coroner of the parish and the superintendents of the Jackson and Pineville Insane Hospitals, to inquire into the sanity of the accused. Article 269: Every plea of insanity must be tried by the judge or by a jury of five or twelve jurors, according as the crime charged is triable. Article 270: For the commitment to the criminal ward of a hospital for the insane of an accused found to be presently insane until his reason is restored. Article 271: If the accused is found to have been insane at the time of the commission of the crime charged, he is to he committed to the criminal ward of a hospital for the insane until discharged therefrom pursuant to the provisions of article 272. Article 273 is a bar to any review of a ruling by the lower court on the trial of a plea of insanity. The title of Act No. 136 of 1932 is as follows:

"To amend and re-enact Article 267, and to repeal Articles 268, 269, 270, 271, 272 and 273 of the Code of Criminal Procedure for the State of Louisiana, and to repeal all laws or parts of laws in conflict herewith."

Section 1 of the act amends article 267 of the Code of Criminal Procedure and provides for the procedure that was literally followed by the trial court in this case. Sections 2 and 3 of the act are as follows:

"Section 2. That articles 268, 269, 270, 271, 272, and 273 are hereby repealed.

"Section 3. That all laws or parts of laws in conflict with the provisions of this Act be, and the same are, hereby repealed."

It is true that section 2 of the act enumerates articles 268, 269, 270, 271, 272, and 273, but does not describe them as articles of the Code of Criminal Procedure. Nevertheless, the title of the act does specifically describe them as such, and, as they are in direct conflict with the provisions of section 1 of the act, they are repealed by section 3, the general repealing clause of the act, even if we should hold that they are not specifically repealed by section 2 thereof. We are of the opinion that the trial judge correctly ruled that Act No. 136 of 1932 is not repugnant to any provision of the Constitution, and that the defendant in this case was accorded every right to which he was entitled under the provisions of the act.

Bills 2, 3, and 4 are more or less interrelated, but we will consider them separately.

Bill No. 2.

This bill was reserved to the overruling of an objection by counsel for the defendant to a question propounded to Dr. E. McC. Connelly while testifying as an expert in mental diseases on the hearing of the defendant's plea of present insanity. The question, objection and ruling follow:

"Q. Was a record usually kept of the evidence adduced or report actually made by the examining psychiatrists for the purpose of leaving a record as to the patient's psychiatric condition?

"By Mr. Dowling:

"I object to the question on the ground that it is irrelevant and immaterial.

"By the Court:

"It is very relevant. You have introduced here a report from a Board of the United States Army. You have a record attached to that as to what they base it on, and this evidence is admissible. I therefore overrule the objection."

When the bill was prepared and presented for signature, the judge added thereto the following per curiam:

"On the hearing of defendant's plea of present insanity, defendant contented himself, with the offer of no evidence other than a photostatic copy of an army record showing the discharge of one Louis Kenneth Neu from the United States Army in 1926, on a 'certificate of disability on account of psychosis, unclassified, recessional or lucid phase,' and a copy certified under Act of Congress, of the proceedings and findings of a Commission of Lunacy in the State of Georgia in 1927, pronouncing one Louis Kenneth Neu a lunatic and committing him to a state hospital for the insane for treatment. No effort was made by the defendant to identify himself as being the same Louis Kenneth Neu at the bar. The army record was silent upon the facts and circumstances upon which the army doctors concluded that one Louis Kenneth Neu was entitled to a discharge on a 'certificate of disability on account of psychosis, unclassified, recessional or lucid phase.' Dr. E. McC. Connelly, one of the expert psychiatrists, when on the stand testified that he had been assigned to the psychiatric division of the Medical Corps of the United States Army during the World War. He further testified that he was a Government Psychiatrist after the war in the examination of ex-soldiers. When asked what means and methods were used by the United States Army in surveying alleged insane soldiers, he replied that the Army used very much the same means and methods employed in civil life. He was next asked if a record was usually kept of the evidence adduced and reports actually made by the (army) psychiatrists for the purpose of leaving a record as to the patient's psychiatric condition. It was to this question that the defendant objected. * * * After I overruled the objection the doctor testified that a record was always kept and that the symptoms were always written down for the diagnosis of mental cases. * * *

"The defendant stated to Doctors Connelly and O'Hara that the reason given by the Army doctors for his discharge (psychosis) was not the real reason, but that this had been arranged for the purpose of avoiding a court martial of the defendant for an affair with an army officer's wife. Defendant stood upon this army record as a part of his plea of present insanity to avoid trial for his crime. Palpably, this record was subject to attack by the state. The question and answer were both material and relevant."

Pursuant to the provisions of Act No. 136 of 1932, Drs. O'Hara and Connelly were appointed a lunacy commission to examine the defendant with regard to his mental condition. Their report to the court was in the following words:

"We have the honor to report that, in accordance with your orders, we have examined the above named Louis Kenneth Neu, and have carefully investigated his mental condition. It is our opinion that at the present time Louis Kenneth Neu is not insane, and that he is able to understand the proceedings and assist in his defense."

In addition to the report,...