State v. Page, 86309
| Decision Date | 24 May 1967 |
| Docket Number | No. 86309,86309 |
| Citation | 11 Ohio Misc. 31,228 N.E.2d 686 |
| Parties | , 40 O.O.2d 173 STATE v. PAGE. |
| Court | Ohio Court of Common Pleas |
John T. Corrigan, Pros. Atty., George J. Moscarino and Francis E. Sweeney, Cleveland, for plaintiff.
Robert W. Jones and Edward I. Stillman, Cleveland, for defendant.
Marion L. Page, Jr., was indicted on March 16, 1967, for murder in the first degree. On April 24, 1967, the presiding judge set the trial for May 22, 1967. The next day, April 25, 1967, defendant entered his plea of not guilty by reason of insanity.
The present motion, filed by the county prosecutor on May 18, 1967, is for an inquiry into present sanity under Section 2945.37, Revised Code, and also for the commitment of the defendant to Lima State Hospital under Section 2945.40, Revised Code.
Section 2945.37, Revised Code, provides as follows:
'If the attorney for a person accused of crime whose cause is pending in the court of common pleas, before or after trial suggests to the court that such person is not then sane, and a certificate of a reputable physician to that effect is presented to the court, or if the grand jury represents to the court that any such person is not then sane or if it otherwise comes to the notice of the court that such person is not then sane, the court shall proceed to examine into the question of the sanity or insanity of said person, or in its discretion may impanel a jury for such purpose. * * *'
There being no suggestion of present insanity by defense counsel, and no representation by the grand jury; the only possible basis for involving the statute would be that:
'* * * it otherwise comes to the notice of the court that (defendant) is not (now) sane.'
As indicated by the Supreme Court in Evans v. State (1930), 123 Ohio St. 132, at p. 140, 174 N.E. 348, at p. 351, these words mean that the examination must be conducted:
'* * * whenever in good faith it is stated to the court that the defendant at the time of the trial is not then sane.' (Emphasis supplied.)
In any given instance, whether or not it has been stated to the court that the defendant at the time of trial is not then sane is a question for the court to decide on a basis of the record. As said by the Supreme Court in State v. Smith (1931), 123 Ohio St. 237, 242, 174 N.E. 768, 770:
In the present case the county prosecutor was unable or unwilling to state to the court that the defendant is now insane and was unable to produce any witness who was able or willing to make such a representation. The most he would do was produce an expert witness, Dr. Gill, who said:
However, the record does indicate the relevant questions used by Dr. Gill in his examination of the defendant and shows that the defendant answered them intelligently and accurately. The defendant's appearance and demeanor in the courtroom tends to confirm the implication of sanity inherent in his answers to Dr. Gill's questions.
True, Dr. Gill did state that 'further tests and examinations of the defendant are definitely in order.' However, as revealed by his further testimony, Dr. Gill predicated this opinion not upon any observed implication or tendency toward present insanity but rather 'in view of the fact that this man is up on a very serious offense.' The statute, by its terms, does not provide for an inquiry into sanity merely because the offense is serious.
It has been argued that if a defendant pleads not guilty by reason of insanity at the time of the crime, an inquiry should be made at the time of trial to ascertain if he is then sufficiently sane to stand trial. However, the Legislature did not so provide; possibly because in the latter instance (i. e. present insanity) the court considers the mental capacity of the defendant from an entirely different viewpoint than the first (i. e. insanity at the time of the crime). 15 Ohio Jurisprudence 2d 657. In any event, the statute provides the manner in which the issue of present insanity can be raised, and the issue cannot be raised except in the manner provided.
In the present case, neither the county prosecutor nor his witness, Dr. Gill, was willing or able to state that the defendant is insane. It would, therefore, be contrary to law to order an inquiry into present sanity. This is not a case like State v Pealy (1947), Ohio Com.Pl., 75 N.E.2d 714, 49 Ohio Law Abst. 282, 35 O.O. 549, where the prosecutor 'suggested' insanity and a hearing was ordered. In the Pealy case the prosecutor accompanied his 'suggestion' with a physician's certification that the defendant was not then sane and, as found by the court, he thereby brought it to the notice of the court that the defendant was insane.
The second part of the county prosecutor's motion requests that the defendant herein be sent to Lima State Hospital under Section 2945.40, Revised Code, which reads in part as follows:
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