State v. Sapp
| Citation | 203 S.W.2d 425 |
| Decision Date | 09 June 1947 |
| Docket Number | No. 40261.,40261. |
| Parties | STATE v. SAPP, Appellant. |
| Court | United States State Supreme Court of Missouri |
Appeal from Boone Circuit Court. — Hon. W.M. Dinwiddie, Judge.
AFFIRMED.
Howard F. Major and Ralph L. Alexander for appellant.
(1) The court erred in overruling defendant's motion to quash the amended information herein for the reason that said amended information did not contain the same charge as embodied in said original information and that the defendant was not accorded a preliminary examination on the charge contained in the amended information, as provided by Sec. 3893, R.S. 1939. Sec. 3893, R.S. 1939; State v. Fuser, 75 Mo. App. 263. (2) The court erred in overruling defendant's motion to suppress the evidence of Dr. C.C. Ault, Dr. Forrest Thomas and Dr. R.P. Price for the reason that the relationship of physician and patient existed between the defendant and said doctors, and the giving of said evidence at the trial by said doctors was violative of and prohibited by Section 23 of Article II of the Constitution of the State of Missouri in that the giving of said evidence compelled the defendant to testify against himself in a criminal cause and was violative of and prohibited by Sec. 1895, R.S. 1939. Sec. 1895, R.S. 1939; Sec. 23, Art. II, Mo. Constitution; Smart v. Kansas City, 105 S.W. 709, 208 Mo. 162. (3) The court erred in giving Instruction S-3 on the part of the state because said instruction placed upon the defendant a greater burden than required to prove the defense of insanity, and required the defendant to prove the defense of insanity to the reasonable satisfaction of the jury, whereas the defendant had the burden of proof to prove the insanity of the defendant only by the preponderance, that is the greater weight of the credible evidence. Strumpf v. Panhandle Eastern Pipeline Co., 189 S.W. (2d) 223. (4) Said instruction assumed that the defendant did the robbery charged in the information, assumed that he robbed William Harold Mabrey, assumed that he committed the crime charged in the information, failed to submit such issues hypothetically and failed to require a finding on such issues by the jury. State v. Jordan, 268 S.W. 64; State v. Mills, 199 S.W. 131, 272 Mo. 526; State v. Warren, 33 S.W. (2d) 125. (5) Said instruction did not limit and confine the mental condition of the defendant as a defense to the time he was charged with having committed the offense charged and therefore was misleading to the jury, constituted a misstatement of the law, was in conflict with defendant's Instruction D-8, and placed upon the defendant the undue burden of proving total and general insanity. State v. Morris, 172 S.W. 603, 263 Mo. 339; State v. Jackson, 142 S.W. (2d) 45. (6) Said instruction assumes or implies facts not in evidence and in effect improperly singles out and comments thereon, in that said portion of said instruction mentions and refers to "mere weakness of intellect" and "subnormal mental capacity" and thereby applies such terms to the condition of mind of the defendant. State v. Kauffman, 46 S.W. (2d) 843. (7) Said instruction did not limit and confine the mental condition of the defendant as a defense to his inability to distinguish between right and wrong in reference to the particular act charged against him, and therefore was misleading to the jury, constituted a misstatement of the law, was in conflict with defendant's Instruction D-8, and placed upon the defendant the undue burden of proving total and general insanity. State v. Jackson, 142 S.W. (2d) 45. (8) Said instruction did not limit and confine the mental condition of the defendant as a defense to the time he was charged with having committed the offense charged, and therefore was misleading to the jury, constituted a misstatement of the law, was in conflict with defendant's Instruction D-8, and placed upon the defendant the undue burden of proving total and general insanity. State v. Morris, 172 S.W. 63, 263 Mo. 339; State v. Jackson, 142 S.W. (2d) 45. (9) Said instruction did not limit and confine the mental condition of the defendant as a defense to the time he was charged with having committed the offense charged, and therefore was misleading to the jury, constituted a misstatement of the law, was in conflict with defendant's Instruction D-8, and placed upon defendant the undue burden of proving total and general insanity. State v. Morris, 172 S.W. 63, 263 Mo. 339; State v. Jackson, 142 S.W. (2d) 45. (10) Said instruction defined insanity as a disease which perverts and deranges one or more of the mental and moral faculties and required the jury to find and believe before finding the defendant not guilty on the ground of insanity that they find and believe that the defendant was so perverted and deranged in one or more of his mental and moral faculties. (11) The court erred in giving Instruction S-1 on the part of the state because it covers the whole case and authorizes a verdict of guilty without embodying and including the defense of insanity. State v. Johnson, 64 S.W. (2d) 655; State v. Malone, 39 S.W. (2d) 786. State v. Gabriel, 256 S.W. 765; State v. Slusher, 256 S.W. 817; State v. Helton, 137 S.W. 987, 234 Mo. 559. (12) Said instruction assumed that the defendant feloniously and by force did put the said Williams Harold Mabrey in fear of some immediate injury to his person and assumed that the 1940 DeSoto automobile mentioned in said instruction was of the value of Nine Hundred Dollars ($900) and was in the possession of said William Harold Mabrey, failed to submit such issues hypothetically, and failed to require a finding on such issues by the jury. State v. Jordan, 268 S.W. 64; State v. Mills, 199 S.W. 131, 272 Mo. 526; State v. Warren, 33 S.W. (2d) 125. (13) The court erred in giving Instruction S-2 on the part of the state for the reason that said instruction authorizes a verdict of guilty without embodying and including the defense of insanity. State v. Johnson, 64 S.W. (2d) 655; State v. Malone, 39 S.W. (2d) 786; State v. Gabriel, 256 S.W. 765; State v. Slusher, 256 S.W. 817; State v. Helton, 137 S.W. 987, 234 Mo. 559. (14) The court erred in refusing to give defendant's offered Instructions D-4, and D-9. (15) The court erred in admitting illegal, incompetent and improper medical testimony. (16) The court erred in giving Instruction S-3 for the reason that said instruction charges the jury that inability to resist the impulse or the irresistible impulse to commit the criminal act does not constitute an excuse or defense to a crime, and therefore was an erroneous statement of the law, a misstatement of the law and in conflict with defendant's Instruction D-8. Clark and Marshall on Crimes (2 Ed.), p. 149, sec. 97; State v. Kotovsky, 74 Mo. 247; 14 Am. Jur., sec. 36, p. 793; People v. Lowhone, 292 Ill. 32, 126 N.E. 620; Bradley v. State, 31 Ind. 492; Morgan v. State, 190 Ind. 411, 130 N.E. 528; Parsons v. State, 81 Ala. 577, 60 Am. Rep. 193; Bell v. State, 120 Ark. 530, 180 S.W. 186; Ryan v. People, 60 Colo. 425, 153 Pac. 756; State v. Johnson, 40 Conn. 136; State v. Reidell, 9 Houst. 470, 14 Atl. 550; Smith v. United States, 36 F. (2d) 548; Roberts v. State, 3 Ga. 310; People v. Quimby, 134 Mich. 625, 96 N.W. 1061; 22 C.J.S. 61, pp. 126, 129; Wharton, Criminal Law, p. 602; State v. Felter, 25 Iowa, 67; Abbott v. Commonwealth, 107 Ky. 624, 55 S.W. 196; State v. Lyons, 113 La. 959, 37 So. 890; Commonwealth v. Cooper, 219 Mass. 1, 106 N.E. 545; State v. Keerl, 29 Mont. 508, 75 Pac. 362; State v. Pike, 49 N.H. 399; Commonwealth v. Mosler, 4 Pa. 264; Commonwealth v. Cavalier, 284 Pa. 311, 131 Atl. 229; State v. Mewhinney, 43 Utah 135, 134 Pac. 632; State v. Kelsie, 93 Vt. 450, 108 Atl. 391; Thurman v. Commonwealth, 107 Va. 912, 60 S.E. 99; State v. Hawkins, 23 Wash. 289, 63 Pac. 258. (17) The court erred in refusing to give defendant's offered Instruction D-10 for the reason that said instruction correctly declared the law applicable to the evidence, was supported by the evidence, and the defendant was entitled under the evidence to have the jury instructed that if the defendant as a result of unsoundness of mind had not sufficient will power to govern his action by reason of an insane impulse to do the act charged and which he could not resist or control, it was the duty of the jury to find the defendant not guilty. See authorities cited under (16) of the within Points and Authorities.
J.E. Taylor, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.
(1) The court did not err in failing to quash the amended information on the ground that the appellant was not accorded a second preliminary hearing. State v. Long, 22 S.W. (2d) 809. (2) The court did not err in overruling appellant's motion to suppress the evidence of Doctors Ault, Thomas and Price: Ryan v. Met. Ins. Co., 30 S.W. (2d) 190; Smart v. Kansas City, 208 Mo. 162; State v. Long, 257 Mo. 199; Wells v. City of Jefferson, 132 S.W. (2d) 1006. (3) State's Instruction S-3 is not erroneous as placing an undue burden of proof upon the appellant. State v. Barbata, 80 S.W. (2d) 865; State v. Duestrow, 137 Mo. 44; State v. Murrell, 169 S.W. (2d) 409. (4) Instruction S-3 is not erroneous as assuming that the appellant committed the crime charged in the information. State v. Barbata, 80 S.W. (2d) 865; State v. Holloway, 156 Mo. 222; State v. Soper, 148 Mo. 217. (5) Instruction S-3 is not erroneous as not limiting or confining the mental condition of the appellant as a defense to the time he was charged with having committed the offense. State v. Cain, 31 S.W. (2d) 559; State v. English, 11 S.W. (2d) 1020. (6) Instruction S-3 is not erroneous in telling the jury that the mere weakness of intellect or subnormal mental capacity or inability to resist the impulse was not a defense to the crime. State v. Jackson, 142 S.W. (2d) 45; State v. Pinski, 163 S.W. (2d) 785. (7) Instruction S-3 is...
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