United States v. Smith

Citation404 F.2d 720
Decision Date12 December 1968
Docket NumberNo. 18095.,18095.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John Edward SMITH, Jr., Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Lowell T. Hughes (Court Appointed) Ashland, Ky., for appellant.

James F. Cook, Lexington, Ky. (George I. Cline, U. S. Atty., James F. Cook, Asst. U. S. Atty., Lexington, Ky., on the brief), for appellee.

Before EDWARDS, CELEBREZZE and McCREE, Circuit Judges.

EDWARDS, Circuit Judge.

This case presents for the first time in this decade in this circuit the question of what is or ought to be the test of criminal responsibility concerning a defendant's plea of insanity in a criminal case.

Appellant was charged with robbing the First Federal Savings & Loan Association of Ashland, Kentucky, on October 19, 1965, in violation of 18 U.S.C. § 2113 (a) and (d) (1964). In subsequent proceedings to determine his competency to stand trial, an order was entered on February 4, 1966, finding him not competent and he was sent to a federal medical center to receive psychiatric treatment. Again on July 13, 1966, on psychiatric reports from the federal medical center an order was entered finding him still incompetent to stand trial.

On December 2, 1966, another hearing on appellant's competence was held and he was declared competent to stand trial. The trial was held May 1 and 2, 1967. Appellant's defense was insanity, and two psychiatrists testified for him as expert witnesses. One of them at the time of trial was on the staff of the United States Public Health Service Hospital at Lexington, Kentucky, where appellant had been treated. The other psychiatrist had likewise been on the staff of the Lexington hospital at the time he examined appellant. Both testified that at the time of the offense appellant was suffering from serious mental illness (schizophrenia). Neither testified that appellant was so mentally ill as not to know the difference between right and wrong. One testified that "this act was to a substantial degree a product of his mental illness." And the other said, "In my opinion this action could have certainly been related to his mental disorder as to cause and effect." He answered affirmatively a question as to whether appellant's illness had substantially impaired his ability to conform his conduct to what he knew to be right.

The following portion of Dr. Pfeiffer's testimony is typical of the diagnosis of each psychiatrist:

"Q. Based upon your examination, Doctor, do you have an opinion as to whether or not Mr. Smith was suffering from the mental illness which you have described, schizophrenic reaction, on October 19, 1965?
"A. I saw him during December of 1965 and at that time made a diagnosis of a chronic schizophrenic reaction. We don\'t use that term unless we think the illness has existed for at least six months or so. I think that would mean by implication that he must have carried that diagnosis then, too. This is the way we make medical diagnoses. But obviously I didn\'t examine him on that date.
"Q. But your considered medical opinion is that he was suffering from that mental illness on October 19, 1965?
"A. Yes.
"Q. Now based upon your examination of the defendant and your diagnosis of this mental illness or defect at the time the robbery was committed, do you have an opinion based on a reasonable medical certainty as to whether the robbery was the product of this mental illness or disorder?
"A. I would answer that that in my opinion this act was to a substantial degree a product of his mental illness.
"Q. What do you mean by a substantial degree, Doctor?
"A. It played a major role in his committing the act.
"Q. It played a major role?
"A. Yes.
"Q. Doctor, based upon your examination of the defendant again and your diagnosis of mental illness on October 19, 1965, the date the robbery was committed, do you have an opinion based on reasonable medical certainty as to whether the defendant at the time he committed the act charged was capable of knowing right from wrong in respect to such act, and if he did know the difference, whether as a result of his mental illness he was able to conform his actions to the requirements of the law?
"A. I think he knew that to rob a bank was unlawful. I\'m not certain that he fully understood the implications of such an act. I think he knew that it was unlawful to rob a bank. As to the question of whether he was able to adhere to the right, I think here I would say that his ability in this regard was substantially impaired as the result of his emotional disorder.
"Q. Your testimony is that his ability to adhere to the right was substantially impaired?
"A. Yes."

The government produced no psychiatric testimony but relied upon cross-examination of appellant's expert witnesses, plus the testimony of its lay witnesses as to appellant's conduct and statements.

Appellant's attorney presented two requests to charge — one based upon the Durham rule,1 and the other upon the American Law Institute's test of criminal responsibility.2 The District Judge gave neither of these charges. Nor was the charge drawn from this circuit's last major treatment of the problem of criminal responsibility in Pollard v. United States, 282 F.2d 450 (6th Cir. 1960).3 Instead, at the government's request, he gave the following charge:

"`Insane,\' as used in these instructions, means such a perverted and deranged mental condition as renders a person incapable of distinguishing between right and wrong, or incapable of knowing the nature of the act he is committing; or, even where a person is conscious of the nature of the act he is committing, and is able to distinguish between right and wrong, yet his will — the governing power of his mind — has been so completely destroyed that his actions are not subject to it, but are beyond his control.
"For the purpose of throwing light upon the mental condition of the accused at the time of the alleged offense, the Jury may consider evidence of his mental state both before and after that time.
"Temporary insanity, as well as insanity of longer duration, is recognized by the law. If the Jury has a reasonable doubt, from the evidence in the case, whether the defendant was sane at the time of the alleged offense, he should be acquitted, even though it may appear that he was sane at earlier and later times."

This instruction is supported by dictum from the last time (1897) the United States Supreme Court considered an insanity charge. See Davis v. United States (I), 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), and Davis v. United States (II), 165 U.S. 373, 17 S. Ct. 360, 41 L.Ed. 750 (1897). It is a variation of the classic M'Naghten right-wrong test:

"To establish a defense on the ground of insanity, it must be clearly proved that at the time of committing the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know it was wrong." Daniel M\'Naghten\'s Case, 8 Eng.Rep. 718, 722 (H.L. 1843).

A Supreme Court holding directly in point on the issue of criminal responsibility would, of course, foreclose our consideration of any alternative. But three factors weigh strongly against the Davis cases being regarded as such specific authority. First, the advance of scientific knowledge in the field of psychiatry since 1897 is itself sufficient to render inapplicable any case decided without benefit of modern knowledge. See Durham v. United States, 94 U.S. App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430 (1954), and authorities collected therein; Sobeloff, Insanity and the Criminal Law: From M'Naghten to Durham, and Beyond, 41 A.B.A.J. 793 (1955). Second, the Davis cases were primarily concerned with burden of proof and laid down no rule of law as to a single insanity test. These cases, at most, said that giving the instruction at issue here was not prejudicial error in 1897. United States v. Freeman, 357 F.2d 606, 613-614 (2d Cir. 1966). And third, many courts prior to now have formulated tests in modern psychiatric terms with at least the tacit sanction4 of the United States Supreme Court. United States v. Chandler, 393 F.2d 920 (4th Cir. 1968); United States v. Shapiro, 383 F.2d 680 (7th Cir. 1967); Pope v. United States, 372 F.2d 710 (8th Cir. 1967); United States v. Freeman, 357 F.2d 606 (2d Cir. 1966); Wion v. United States, 325 F.2d 420 (10th Cir. 1963), cert. denied, 377 U.S. 946, 84 S. Ct. 1354, 12 L.Ed.2d 309 (1964); United States v. Currens, 290 F.2d 751 (3d Cir. 1961); McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847 (1962), modifying Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A. L.R.2d 1430 (1954).

All of these courts have rejected the M'Naghten test. In Durham, Judge Bazelon for the D. C. Circuit said:

"We find that as an exclusive criterion the right-wrong test is inadequate in that (a) it does not take sufficient account of psychic realities and scientific knowledge, and (b) it is based upon one symptom and so cannot validly be applied in all circumstances." Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 874 (1954).

In Currens, Judge Biggs for the Third Circuit said:

"The vast absurdity of the application of the M\'Naghten Rules in order to determine the sanity or insanity, the mental health or lack of it, of the defendant by securing the answer to a single question: Did the defendant know the difference between right and wrong, appears clearly when one surveys the array of symptomatology which the skilled psychiatrist employs in determining the mental condition of an individual." United States v. Currens, 290 F.2d 751, 766-767 (3d Cir. 1961).

In Pollard, Judge McAllister, speaking for the Sixth Circuit, in adding "irresistible impulse" to the M'Naghten test, cited authorities criticizing the use of M'Naghten alone. See Pollard v. United...

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