State v. Sullivan

• Decision Date: 29 September 1948
• Docket Number: No. 76.,76.
• Citation: 229 N.C. 251,49 S.E.2d 458
• Court: North Carolina Supreme Court
• Parties: STATE. v. SULLIVAN.

229 N.C. 251

49 S.E.2d 458

STATE.

v.SULLIVAN.

No. 76.

Supreme Court of North Carolina.

Sept. 29, 1948.

BARNHILL, J., dissenting.

Appeal from Superior Court, Buncombe County; H. Hoyle Sink, Judge.

Claude Sullivan was convicted of breaking and entering with intent to commit larceny, and of larceny, and of receiving stolen goods knowing them to have been stolen, and he appeals.

No error.

See also 44 S.E.2d 81, 227 N.C. 680.

Criminal prosecution upon a bill of indictment containing three counts charging that defendant on 6 March, 1948, with force and arms, unlawfully, willfully and feloniously (1) did break and enter a storehouse, shop, and building, dwelling, occupied by and in possession of Fritschy's Auto Service and James G. Fritschy, where merchandise, chattels, moneys and other valuable securities and personal property were being kept, with intent to commit a felony, to-wit: the crime of larceny therein, etc., (2) did take, steal and carry away the following personal property: "One office safe containing $3100 and other personal property owned by and in the possession of Fritschey's Auto Service and James G. Fritschy of the value of $3500"; and (3) did receive and have said property, etc., "well knowing the said property to have been theretofore feloniously stolen, taken and carried away", --all contrary to the form of the statutes in such cases made and provided by law, etc.

When the case was called for trial in Superior Court, upon inquiry by the court as to the plea of defendant, counsel for defendant stated to the court that he desired to enter a plea of incapacity to plead to the bill of indictment, and, at the same time, submitted the following as the proper and only issue at this time: "Is the defendant, Claude Sullivan, sane and capable of conducting his defense in this indictment?"

Thereupon, the court announced to counsel for defendant that it would submit the issue tendered and would also submit an issue to the same jury as to the guilt or innocence of defendant upon the charges in the bill of indictment, and thereupon directed that a plea of not guilty on the charge of guilt or innocence be entered for defendant. To this ruling of the court defendant, through his counsel and in apt time, objected and excepted. Exception.

The State offered testimony bearing upon the issues as indicated above, and (1) as each witness came to testify, counsel for defendant objected to the introduction of any testimony on question of the guilt or innocence of defendant, and (2) at the close of the testimony of each witness, in respect to the guilt or innocence of defendant, moved to strike out all evidence relating thereto, and each time duly excepted. Exceptions.

While the charge of the court is not shown in the record and case on appeal, these issues were submitted to and answered by the jury as here shown:

1. Is the defendant at this time mentally incompetent to plead to the bill of indictment and to properly prepare his defense, as alleged by the defendant?

2. Was the defendant mentally incompetent to know right from wrong on the 6th day of March, 1948, as alleged by the defendant?

3. Is the defendant guilty, as charged in the bill of indictment?

The jury answered the first issue "No", the second issue "No", and the third issue "Yes".

Motion of defendant to set aside the verdict was overruled, to which exception was duly taken.

Judgment was entered: (1) Upon the charge of breaking and entering, imprisonment at hard labor in State's Prison at Raleigh for not less than 5 nor more than 10 years; (2) on the charge of larceny that prayer for judgment be continued for 10 years on specified condition; and (3) on charge of receiving stolen goods, knowing them to be stolen, that judgment be suspended. Defendant excepted and ap peals to the Supreme Court and assigns error.

Harry M. McMullan, Atty. Gen., and T. W. Bruton, Hughes J. Rhodes, and Ralph M. Moody, Asst. Attys. Gen., for the State.

Don C. Young, of Asheville, for defendant appellant.

WINBORNE, Justice.

The assignments of error on this appeal, as stated in brief of counsel for defendant, the appellant, bring into question only the ruling of the trial court in submitting the issue as to the then present mental disorder of defendant and the issue as to his guilt or innocence to the same jury and at the same time.

In this connection, considering pertinent statutes of this State, P. L. 1899, Chapter 1, now G. S. § 122-83 and G. S. § 122-84, as amended by Laws 1945, Chapter 952, Sections 53 and 54, applicable rules of the common law and decided cases of this Court, State v. Harris, 53 N.C, 136, 78 Am.Dec. 272; State v. Vann, 84 N.C. 722; State v. Haywood, 94 N.C. 847; State v. Khoury, 149 N.C. 454, 62 S.E. 638; State v. Sandlin, 156 N.C. 624, 72 S.E. 203; State v Godwin, 216 N.C. 49, 3 S.E.2d 347, the challenge may not be sustained on the facts of this record.

The General Assembly of this State, by statute enacted in the year 1899, Public Laws 1899, Chapter 1, has provided (1) in Section 65, among other things, that "When a person accused of the crime of murder * * * or other crime * * * shall be found by the court to be without sufficient mental capacity to undertake his defense or to receive sentence after conviction, the court before which such proceedings are had shall detain such person in custody until an inquisition shall be had in regard to his mental condition * * * ", and (2) in Section 63, among other things, that " * * * all persons who, being charged with crime, are adjudged to be insane at the time of their arraignment, and for that reason cannot be put on trial for the crimes alleged against them, shall be sent by the court before whom they are or may bearraigned for trial, when it shall be ascertained by due course of law that such person is insane and cannot plead, to the state hospital * * * and they shall be confined therein * * * and * * * treated, etc."

These statutes are now G. S. § 122-84 and G. S. § 122-83, respectively, as amended by Laws 1945, Chapter 952, Sections 54 and 53, respectively. (And it may be noted in passing, that the 1945 amendment strikes out the word "insane" where it appears and inserts in lieu thereof the words "mentally disordered", and also strikes out the word "insanity" where it appears and inserts in lieu thereof the words "mental disorder").

Thus it is seen that these statutes, in so far as they relate to a person accused of crime presently insane or mentally disordered, take hold only when such person "shall be found by the court to be without sufficient mental capacity to undertake his defense" under one statute, and is "adjudged to be insane at the time of" his "arraignment, etc." under the other. But the General Assembly has prescribed no procedure by which the question of the present insanity or mental disorder of the person so accused of crime may be brought to the attention of the court, or for the investigation by the court preliminarily to adjudicating the question as to whether accused is so mentally disordered as to be incapable of making a rational defense, that is, whether the accused has capacity to understand the nature and object of the proceedings against him, to comprehend his own conduct in reference to such proceedings, and to make a rational defense, --the test generally adopted to determine whether the person should be put on trial. See Weihofcn on "Insanity as a Defense in Criminal Law" 333.

Hence, in the absence of an applicable statute, the investigation of the present insanity or mental disorder to determine whether the accused shall be put on trial, and the form of the investigation ordered, are controlled by the common law. So much of the common law as has not been abrogated or repealed by statute is in full force and effect within this State. G S. § 4-1, formerly C. S. § 970. Hoke v. Atlantic Greyhound Corporation, 226 N.C. 332, 38 S.E.2d 105.

And the rule at common law is that an accused cannot be tried while insane, for the obvious reason that his insanity may render him incapable of making a rational defense, and at common law, if at any time while criminal proceedings are pending, the trial court, before or during the trial, either from observation or upon suggestion of counsel, has facts brought to its attention which raise a doubt of the then sanity of the accused, it should, before putting him upon trial or continuing his trial initiate an investigation of such by any method, generally, that seems to it best. 14 Am.Jur. 801 Criminal Law, Section 44. That is, the method that shall be ordered of determining the present sanity of the accused before the beginning of the trial generally rests in the discretion of the trial judge, with or without the aid of a jury. He may inquire into the facts himself, or he may impanel a jury for the purpose if he sees fit, or he may submit the question as an issue to the trial jury. See 142 ALR 961--Annotation, subject "Investigation of present sanity to determine whether accused should be put, or continue, on trial", for full treatment of the subject.

Moreover, the subject of present incapacity of one accused of crime to plead to indictment therefor first came to this Court for consideration under the rules of the common law in the case of State v. Harris 1860, 53 N.C. 136. The headnote there epitomizes the decision of the Court: "Where, upon the arraignment of one for murder, it was suggested that the accused was a deaf-mute, and was incapable of understanding the nature of a trial and its incidents and his rights under it, it was held, proper for a jury to be empaneled to try the truth of these suggestions, and on such jury responding in the...