State v. Penry

• Decision Date: 20 January 1962
• Docket Number: No. 42696,42696
• Citation: State v. Penry, 368 P.2d 60, 189 Kan. 243 (Kan. 1962)
• Parties: The STATE of Kansas, Appellee, v. Cecil PENRY, Appellant.
• Court: Kansas Supreme Court

Page 60

368 P.2d 60

189 Kan. 243

The STATE of Kansas, Appellee, v. Cecil PENRY, Appellant.

No. 42696.

Supreme Court of Kansas.

Jan. 20, 1962.

Syllabus by the Court.

1. The presumption that an accused is sane and responsible for his acts exists until the contrary is shown by sufficient evidence.

2. The burden of proof is on an accused pleading insanity to prove his legal incapacity to confess the crime.

3. The record in a criminal case is examined and it is held: The trial court did not err in admitting the accused's statement made to the law enforcement officials.

William B. McCormick, Topeka, argued the cause and was on the briefs for appellant.

Robert M. Brown, County Attorney, Topeka, argued the cause, and William Ferguson, Atty. Gen., was with him on the briefs for appellee.

WERTZ, Justice.

This is an appeal from a conviction of the offense of robbery in the first degree (G.S.1949, 21-527). The undisputed facts, as disclosed by the record, are as follows:

On the night of June 30, 1960, defendant Cecil Penry and his two companions, McPherson and Bond, began a robbery tour in Topeka. The three men drove around the eastern section of town where, prior to the robbery in question, they robbed the occupants of two separate automobiles.

About midnight Bryan Vestal and a Miss DeWitt were parked alongside the road near a television tower west of the city. The defendant and his two accomplices drove up and parked their automobile behind the Vestal car and defendant and one of his companions approached the Vestal car on either side, one armed with a ball bat and the other with a knife with which they threatened both Vestal and Miss DeWitt, and obtained from them sixteen dollars. Shortly thereafter McPherson was apprehended and he admitted being involved in the holdup and implicated the defendant.

Defendant Penry was arrested, and on July 5, after being advised of his rights by Fred S. Jackson, assistant county attorney, made a complete, detailed statement of his activities during the night of June 30 and the morning of July 1. The defendant admitted his participation in the two roberies in the east part of town as well as the robbery in question.

The record further discloses that approximately four months later, on October 25, defendant was found by a court-appointed commission of three physicians to be insane and unable to comprehend his position or make his defense, and was committed to the Larned State Hospital under the provisions of G.S.1949, 62-1531 where he remained until February 17, 1961, at which time he was pronounced recovered from his disability and was returned to the Shawnee county district court for trial.

At the trial defendant's accomplice, McPherson, testified to the robberies and to defendant's action in the robberies on the night in question.

Mr. Jackson, former assistant county attorney, testified he made the initial investigation of the case and took the statement made by the defendant on July 5; that prior to taking the statement the defendant was advised of Mr. Jackson's official position, that the sheriff was present and also that a certified court reporter was present and would record everything the defendant had to say; and that he advised defendant that he was making no promises in order to obtain the statement. Mr. Jackson further advised the defendant that anything defendant said could be used against him in court, and then asked defendant if he was willing to make a statement under those conditions. Defendant answered in the affirmative.

On cross-examination Mr. Jackson testified that in his opinion defendant was competent to make a statement, that defendant appeared to be a normal person and exhibited normal behavior.

Defendant's statement was admitted in evidence over his counsel's objection on the sole ground of its competency and voluntariness without giving any reason for such objection.

The jury returned a verdict of guilty; and from an order overruling his post-trial motion defendant appeals.

It appears that defendant's sole contention of error is that inasmuch as he was found to be insane approximately four months after the commission of the offense and the making of his statement admitting the robbery...