Van Dusen v. State

• Decision Date: 10 December 1966
• Docket Number: No. 44477,44477
• Citation: 197 Kan. 718,421 P.2d 197
• Parties: Larry Owen VAN DUSEN, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 197

421 P.2d 197

197 Kan. 718

Larry Owen VAN DUSEN, Appellant, v. STATE of Kansas, Appellee.

No. 44477.

Supreme Court of Kansas.

Dec. 10, 1966.

Rehearing Denied Jan. 3, 1967.

Syllabus by the Court

1. The test of responsibility for crime differs from that of mental competency to stand trial.

2. The test of responsibility for commission of crime in Kansas is whether the accused was capable of distinguishing between right and wrong at the time and with respect to the act committed.

3. Insanity at the time of the commission of crime is to be regarded as a defense in the criminal prosecution for such offense and as such is to be presented and determined during the trial; such question cannot be raised or considered in a 60-1507 proceeding inasmuch as the guilt or innocence of a convicted person is not properly justiciable therein.

4. The test of insanity of an accused precluding his being put on trial for a criminal offense is his capacity to comprehend his position, understand the nature and object of the proceedings against him and conduct his defense in a rational manner. If the defendant in a criminal action is capable of understanding the nature and object of the proceedings pending against him, if he rightly comprehends his own condition with reference to such proceedings, and can conduct his defense in a rational manner, he is, for the purpose of being tried, to be deemed sane, although on some other subject his mind may be deranged or unsound.

5. The manner in which the necessity for an inquiry concerning a defendant's insanity is raised is not of much importance. If the court learns from observation, reasonable claim or credible source that there is real doubt of defendant's mental condition to comprehend his situation or make his defense it is the duty of the court to order an inquiry concerning the matter.

6. It is the trial court in whose mind a real doubt of sanity or mental capacity to properly defend must be created before that court is required to order an inquiry solely on its own initiative. The necessity for an inquiry under such circumstances addresses itself to the discretion of the court and its decision will not be disturbed in the absence of abuse of sound judicial discretion.

7. In a proceeding initiated pursuant to K.S.A. 60-1507 to set aside the judgment and sentence in appellant's criminal action, the record is examined, and it is held, the sentencing court did not err in failing to order a hearing to determine appellant's mental competency to stand trial, and held further, that the trial court in the 1507 proceeding is not shown to have erred in determining the issues presented to it without holding an evidentiary hearing in appellant's presence.

J. C. Edwards, Iola, argued the cause and was on the brief, for appellant.

Robert C. Londerholm, Atty. Gen., and Frederick G. Apt, Jr., County Atty., were on the brief, for appellee.

HARMAN, Commissioner:

This is an appeal from an order denying appellant post conviction relief.

On October 21, 1958, appellant was arrested upon a warrant issued by the county court of Allen county, Kansas, charging one count of burglary in the first degree and larceny in connection therewith and one count of burglary in the second degree and larceny in connection therewith. In each instance the property alleged to have been stolen consisted of women's underwear. Appellant requested preliminary hearing upon these charges. Such preliminary hearing was set for November 12, 1958, at which time appellant appeared with his retained counsel, a member of the Allen county bar, and waived preliminary hearing and was bound over for trial in the district court of Allen county.

On November 17, 1958, appellant, then eighteen years of age, appeared on such charges in the Allen county district court without counsel. Upon a showing that appellant was destitute another member of the Allen county bar was appointed to represent him. Later upon the same day and after a recess the following proceedings occurred as reflected in the journal entry of judgment:

'The Court caused the defendant to stand and the charges as contained in Count 1 of the information were read to the defendant by the Clerk of the District Court. The Court advised the defendant as to the charges, the penalties involved, if the defendant understood said charges and penalties and if he had discussed this matter with his attorney, all of which the defendant answered in the affirmative. The Court thereupon asked the defendant how he pleads to the charge of burglary in the first degree. Defendant thereupon enters his plea of guilty. The Court thereupon asked the defendant how he pleads to the charge of larceny in connection with burglary. Defendant thereupon enters his plea of guilty.

'THEREUPON the Court finds that the pleas of the defendant are freely and voluntarily made; that the defendant has been advised in this matter by his attorney and the Court accepts the pleas of guilty of the defendant and finds that said defendant is guilty of the offenses of burglary in the first degree and larceny in connection with burglary.

'THE COURT having examined the information and being fully advised in the premises asked the defendant if he has any legal cause to show why judgment should not be pronounced against him, the defendant having none and the Court knowing of none, the Court thereupon rendered judgment.'

The court then sentenced appellant to the state industrial reformatory for the statutory period for the offenses of burglary in the first degree and larceny in connection therewith as contained in count one of the information, such sentences to run concurrently. The charges contained in the other count were dismissed.

At the time these sentences were imposed the sentencing judge was aware of a history of aberrant behavior by appellant consisting of the taking of female under apparel. A letter to the Allen county attorney from appellant's mother in California indicated she had first become aware of his behavior about four years previously. She had sought the help of a psychiatrist with the result that appellant was made a ward of the Orange county, California, juvenile court and committed to the Atascadero State Hospital in that state during the period from May 5, 1956, to June 15, 1957. He was discharged from that hospital with the notation 'further treatment not beneficial.'

It further appears that after appellant's commitment to the reformatory pursuant to the Allen county sentence he was released under parole about January 19, 1960. Thereafter and on July 18, 1960, he appeared in the district court of Stafford county, Kansas, being represented by court appointed counsel, and pleaded guilty to the offense of second degree burglary, which charge evidently involved the taking of women's under apparel from a Stafford county home. Upon the joint application of the Stafford county attorney and appellant's attorney the Stafford county district court referred appellant to the Larned State Hospital for examination and report pursuant to G.S.1959 Supp. 62-1534 and 62-1535. Appellant evidently remained at the Larned hospital until September 20, 1961, when he was discharged with the indication as alleged by appellant 'hospitalization was no longer required.' Appellant was returned to the state industrial reformatory for parole violation under the Allen county sentence. On October 3, 1961, upon the motion of the Stafford county attorney the burglary charge against appellant in that county was dismissed.

In 1964 appellant filed in the Allen county district court his pro se motion pursuant to K.S.A. 60-1507 to vacate the sentence confining him to the reformatory. The motion was based primarily on his assertion of insanity at the time of the commission of the alleged offenses and upon the failure of the trial court to order a sanity hearing for him. Included in these allegations were claims of denial of effective assistance of counsel based upon lack of time to prepare a defense, and the making of a confession while insane. The trial court, without plenary hearing, denied appellant's motion as indicated in its memorandum decision to wit:

'The application of the defendant in this case is based upon his contention that he was insane at the time he committed the offense for which he is now confined, and at the time he was arraigned and sentenced; and that such alleged condition of the defendant 'does not appear in the record, nor the error in the proceedings.'

'He further complains that he was not represented by a competent counsel and that he was not given time to prepare his defense. The record shows that he was produced in court prior to arraignment for the express purpose of inquiring into his representation, and that Mr. Charles Apt, eminently qualified, was appointed to represent him. Arraignment was postponed to such time as defendant and his attorney might indicate to the Court that he was ready to be arraigned. Arraignment was later the same day upon specific request of defendant and his attorney.

'At the preliminary hearing before the magistrate, the defendant was competently represented by John O. Foust. Both Mr. Apt and Mr. Foust are highly qualified, eminent counsel.

'At the time of arraignment and sentence, the history of the defendant relative to his treatment for mental illness was known to the Court and taken into consideration. There had never been an adjudication of insanity. His confinement in the Atascadero State Hospital in California was for a ninety day observation as an abnormal sex offender followed by a period as a voluntary patient. Shortly before he got in trouble in Allen County, Kansas he was discharged from and released by the United States Navy.

'At the time of arraignment and sentence it was apparent to the Court that the defendant's offense was in the category of abnormal sex crime but he was normally aware of his rights and of the nature of his offenses (breaking...