State v. Olinger
| Decision Date | 13 December 1965 |
| Docket Number | No. 2,No. 51158,51158,2 |
| Citation | 396 S.W.2d 617 |
| Parties | STATE of Missouri, Respondent, v. Don McDodd OLINGER, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, David Dempsey, Special Asst. Atty. Gen., Clayton, for respondent.
J. William Blackford, Kansas City, for appellant, Blackford & Wilhelmsen, Kansas City, of counsel.
The defendant, Don McDodd Olinger, was charged by information with the offenses of second-degree burglary and stealing. Sections 560.070 and 560.156, RSMo 1959, V.A.M.S. At a hearing out of the presence of a jury, the court found that the defendant had been previously convicted of three felonies as charged in the amended information. Section 556.280. The defendant was found guilty by a jury of the charge of stealing property of the value of more than $50 but was acquitted on the burglary charge. A motion for a new trial was filed, considered by the trial court and overruled. The defendant was sentenced to imprisonment for a term of five years and he has appealed. He was represented at the trial as he is here by counsel of his own choice.
The sufficiency of the evidence to support the conviction is not challenged and a brief statement of the evidence will suffice. On Saturday night, July 28, 1962, Harry Baker, manager of the Great Atlantic and Pacific Tea Company store in Lexington, Missouri, closed the place of business and saw that everything was locked before leaving. The next morning he came to the store at about 9 o'clock and noted that a number of cartons of cigarettes were missing from the place they were kept at a check-out counter near the front of the store. Further investigation disclosed that an opening, about 30 inches by 30 inches, had been made in a wall of the building at a point where there was a lean-to shed on the outside that housed heating and cooling equipment. The manager checked his inventory and ascertained that about 250 cartons of cigarettes having a value between $500 and $600 were missing. The manager called the sheriff and, among other things, told him that the cigarettes could be identified by the name A&P marked on them together with store number 154.
In the course of repairing the wall, a billfold was found under the pile of bricks and mortar that had been taken from the wall. In the billfold was $14 in cash, a General Mills 'work slip', a driver's license issued to the defendant Don Olinger and other papers. The defendant lived and worked in Kansas City. He was arrested with the assistance of members of the Kansas City Police Department. Two hundred and thirty-two cartons of the cigarettes bearing the A&P mark and the store number were found in a crawl space under the defendant's house. These were identified by the manager as the cigarettes taken from the store. The defendant made numerous statements to the sheriff and his deputy after he was arrested and while he was in jail which implicated him in the offenses charged.
The defendant asserts that he was entitled to have his case tried and submitted under the provisions of Sec. 552.030, RSMo 1963, Cum.Supp., V.A.M.S., pertaining to mental disease or defect excluding responsibility for criminal conduct. This section which was enacted by the general assembly as one of several statutes relating to the mental condition of persons accused or convicted of crime became effective on October 13, 1963. Laws of Missouri 1963, pp. 4 and 674.
Section 552.030, insofar as pertinent to our present inquiry, provides as follows:
'1. A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he did not know or appreciate the nature, quality or wrongfulness of his conduct or was incapable of conforming his conduct to the requirements of law.
The offense charged was committed on July 28, 1962, and an information was filed October 15, 1962. On the same day the defendant accompanied by his counsel was arraigned, waived the reading of the information and 'enters a plea of Not Guilty to the charge of Burglary and Stealing.' A trial was had and on October 3, 1963, a jury found the defendant guilty of second-degree burglary and stealing. On January 20, 1964, the defendant's motion for a new trial was sustained on the ground of improper remarks of the prosecuting attorney made during the opening statement.
On April 3, 1964, the defendant filed a written notice of his intention to rely on the defense that at the time of the alleged offense, as a result of mental disease or defect, he did not know or appreciate the nature, quality or wrongfulness of his conduct or was incapable of conforming his conduct to the requirements of the law. In his written notice, the defendant also moved that the court order the defendant committed to a state mental institution pursuant to paragraph 1 of Sec. 552.040, RSMo 1963, Cum.Supp., V.A.M.S., covering an acquittal on the ground of mental disease or defect excluding responsibility. On April 13, 1964, the prosecuting attorney filed his reply refusing to accept the defense and requested a mental examination and report pursuant to paragraph 4 of Sec. 552.030. The court appointed Dr. E. C. Kepler of the Division of Mental Diseases of State Hospital No. 1 at Fulton to make the examination. On June 10, 1964, Dr. Kepler filed his report of the psychiatric examination of the defendant which concluded with the finding that the defendant was competent to stand trial and was not suffering from any mental disease or defect. On July 20, 1964, the case was called, both the state and defendant announced ready, and the trial began which resulted in the present conviction.
The defendant did not testify but medical evidence offered in his case tended to show that in November 1962 the defendant became a patient of Dr. Albert Preston, Jr., a doctor of medicine specializing in psychiatry. Based on an electroencephalogram and other examinations, the doctor made a diagnosis of involutional depression or melancholia and testified there were 'suggestions of an epileptic equivalent', and that in such an episode or epileptic fugue a person loses consciousness or his memory is blurred and at the time he cannot control his actions. The defendant was treated and improved under medication. In answer to a question whether the defendant was 'suffering from any mental impairment' when 'he dug a hole in this wall and took these cigarettes and shoved them up under his house', Dr. Preston gave an opinion that the defendant's acts were 'incompatable and inconsistent with normal behavior' and the defendant did not have 'full possession of his mental faculties' at the time of such conduct. However, the doctor's testimony was so speculative, vague, and contradictory that it lacked the certainty necessary for probative value with respect to the issue on which it was offered. See Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644, 647[6, 8]. On the whole record, there is no substantial evidence that at the time of the burglary and stealing on July 28, 1962, the defendant was afflicted with a mental disease or defect of such nature that he did not know or appreciate the nature, quality or wrongfulness of his conduct or was incapable of conforming his conduct to the requirements of the law. The evidence was insufficient to invoke the provisions of Sec. 552.030, and the court did not err in refusing to submit that defense. State v. Brizendine, Mo., 391 S.W.2d 898, 903. The respondent urges additional reasons why Sec. 552.030 was not applicable such as the statute operating prospective only and that defendant had not taken proper steps to invoke the statute even if it were otherwise applicable. But these contentions of the respondent need not be considered in view of the ruling we have made.
Because of the nature of the evidence offered by the defendant, the contentions made at the trial and the nature of the issues submitted, we have, in the exercise of our discretion, also considered the evidence as bearing on the defense of insanity as it existed prior to the enactment of Sec. 552.030. See State v. Goodwin, Mo., 352 S.W.2d 614, 619. On the entire record we find that the evidence was not sufficient to require a submission of this issue. State v. Brizendine, Mo., 391 S.W.2d 898, 903; State v. Hutchin, Mo., 353 S.W.2d 701, 703. The issue of insanity was submitted to the jury but the defendant would have no standing to complain since the submission was more favorable to him than warranted by the evidence and therefore not...
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