Terry v. Com.

• Decision Date: 17 May 1963
• Citation: 371 S.W.2d 862
• Parties: Willard TERRY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 862

371 S.W.2d 862

Willard TERRY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

May 17, 1963.

Concurring Opinion May 20, 1963.

As Modified on Denial of Rehearing Oct. 18, 1963.

Claude Asbury, W. G. Wheeler, Catletteburg, for appellant.

John B. Breckinridge, Atty. Gen., James G. Osborne, Asst. Atty. Gen., for appellee.

WILLIAMS, Judge.

The appellant, Willard Terry, was tried in the Boyd Circuit Court and was convicted of the murder of his son. His punishment was fixed at death. Although no bill of exceptions was filed, we have reviewed the entire record in this case on the basis of the principles discussed in Anderson v. Commonwealth, 302 Ky. 275, 194 S.W.2d 530.

The facts are uncontradicted. Appellant operated a small store in Boyd County and lived on the premises alone after his wife divorced him, which was about two years prior to the prosecution of this case. He had frequently used liquor to excess during a period extending over many years. There was testimony that he became violently irrational sometimes when drunk, but it does not appear that wild irrationality necessarily accompanied his drinking.

On the Sunday of the fatal event, appellant had been drinking. There is no evidence to indicate how much. He appeared in a belligerent mood at the residence of his ex-wife and their children. After chasing her with a knife, he departed only to soon return and attempt to gain entrance to the house. She had locked the door and when he finally gave up, he vowed to kill her on his return. Sometime later appellant came back with a gun and, accosting his ex-wife, he told her to start praying as he was going to kill her. She was unarmed and appears to have done nothing to provoke or excite him. When appellant shot his ex-wife in the abdomen one of their sons, John Terry, entered the house screaming in alarm. Appellant fired on his son two or three times, immediately killing him. Another son witnessed the tragedy.

Appellant was tried by jury twice. He was found guilty and sentenced to death each time. The first verdict was set aside by the trial court. The judgment rendered on the second verdict is here on appeal.

As the appellant's defense was not guilty by reason of insanity, the initial question is whether the trial court erred in refusing him a sanity hearing as per Section 287, Criminal Code of Practice. We held in Denny v. Commonwealth, 274 Ky. 419, 118 S.W.2d 778, as well as in other cases, that no appeal lies from the trial court's refusal to grant a lunacy hearing. The wording of Section 287 indicates a discretionary power and, especially in view of the trial court's appointment of a psychiatrist to examine the appellant and testify at the trial, we find no abuse of discretion.

Appellant objects to the trial court's failure to instruct the jury that if they should find the appellant not guilty by reason of insanity, they should so state in their verdict. As we said in Phelps v. Commonwealth, 32 S.W. 470, 17 Ky.Law Rep. 706, Section 268 of the Criminal Code of Practice is only discretionary and the omission of such instruction is not prejudicial to appellant's rights. Particularly is this true where, as here, the only defense is insanity.

Appellant claims double jeopardy on the ground there were two indictments returned before the first trial. As he was never brought to trial on the first indictment there can be no question of double jeopardy on the two indictments. Appellant was tried and convicted on the second indictment and subsequently a motion for a new trial was granted. As recently as Foster v. Commonwealth, Ky., 348 S.W.2d 759, we have held that, since the granting of a new trial puts the parties in the same position as if there had been no trial, the accused is not thereby twice put in jeopardy.

The trial court instructed the jury on (1) murder; (2) voluntary manslaughter; (3) reasonable doubt; and (4) insanity. The instructions as given were in accord with the interpretation and concept of the law then in vogue. However, in the first paragraph of the dissenting opinion in Newsome v. Commonwealth, Ky., 366 S.W.2d 174, Judge Palmore issued the following warning:

'Conceding that a combination of the M'Naghten and irresistible impulse tests is still fundamentally the most practical approach to the defense of 'insanity,' it can and should be put in a clearer and better form than is stated in our standard instruction, taken from Abbott v. Com., 1900, 107 Ky. 624, 21 K.L.R. 1372, 55 S.W. 196. See Stanley's Instructions, Sec. 901.'

The rule stated in section 4.01 of the Model Penal Code, approved by the American Law Institute in 1962, provides that the defendant has a defense if at the time he committed the act he did not have substantial capacity either to appreciate the criminality of his conduct, or if he did understand it to resist his impules to violate the law. But, in either case, his conduct must have been the result of mental disease or defect. Mental disease or defect is defined as 'not including an abnormality manifested only by repeated criminal or otherwise anti-social conduct.' We believe this rule properly reflects the law.

The trial court instructed the jury in the second paragraph of Instruction No. 4 as follows:

'The law presumes every man sane until the contrary is shown by the evidence and before the defendant can be excused on the ground of insanity, the jury must believe from the evidence that the defendant, Willard Terry, was, at the time of the killing, without sufficient reason to know what he was doing, or had not sufficient reason to know right from wrong, or that, as the result of mental unsoundness he had not then sufficient will power to govern his actions by reason of some insane impulse which he could not resist or control.'

Recognizing full well that the Instruction was given according to the law as interpreted at that time, nevertheless we must declare it erroneous. The confusion which results from the language of that instruction must be avoided now and in the future.

In reaching this conclusion we are not concerned so much with what the bare words of the insanity instruction might mean to a jury as we are with the recognized fact that the traditional phraseology heretofore employed, by appearing to define the law in terms of moral right and wrong instead of legal criminality, materially impairs the capacity of medical witnesses to lend real assistance to the court and jury in determining the defendant's mental state. Dr. Winfred Overholser, in his article 'Criminal Responsibility: A Psychiatrist's Viewpoint,' published in American Bar Association Journal, June 1962, said:

'* * * The problem of causation of conduct is within the psychiatrist's province, whereas the M'Naghten rule and the frame of reference in which the questions under that rule are asked pose a moral query which is not within the competence of the psychiatrist.'

Upon a new trial the court will instruct the jury as follows:

'The law presumes every man sane until the contrary is shown by the evidence. Before the defendant can be excused on the ground of insanity the jury must believe from the evidence that at the time of the killing, the defendant, as a result of mental disease or defect, (a) was substantially unable to understand that he was violating the law, or, (b) if he did understand it, was nevertheless substantially unable to resist his impulse to commit the illegal act.'

The instructions given did not adequately state the appellant's defense.

The judgment is reversed, with directions that appellant be granted a new trial.

STEWART, C. J., and MONTGOMERY, J., dissenting.

MONTGOMERY, Judge (dissenting).

The very point on which the judgment here is reversed was thoroughly considered by this Court and decided the other way less than thirty days ago. See Newsome v. Commonwealth, Ky., 366 S.W.2d 174. The question was considered by the entire Court in the Newsome case before an opinion affirming was rendered on December 14, 1962. The question was again considered in a most thorough manner on petition for rehearing. It was ably presented by counsel on original brief and in the petition.

The petition for rehearing was overruled on April 19, 1963.

The present majority opinion does not honor the decision in the Newsome case by distinguishing it or overruling it. It simply ignores it except to refer to the dissenting opinion...