Webber v. United States
| Decision Date | 20 June 1968 |
| Docket Number | No. 9781.,9781. |
| Citation | 395 F.2d 397 |
| Parties | Gerald WEBBER, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Dean W. Borthwick, Cheyenne, Wyo., for appellant.
Leroy V. Amen, Asst. U. S. Atty., Cheyenne, Wyo. (Robert N. Chaffin, U. S. Atty., Cheyenne, Wyo., on the brief), for appellee.
Before MURRAH, Chief Judge, and BREITENSTEIN and HILL, Circuit Judges.
This is a direct appeal from a judgment of conviction and sentence after a jury verdict finding appellant guilty of transporting a stolen motor vehicle from Casper, Wyoming, to Regina, Saskatchewan.
The evidence on behalf of the Government presented a strong and convincing case and may be summarized as follows.
The vehicle in question was owned by Max Auto Sales and was stolen from its sales lot in Casper on April 28, 1967. Appellant had resided in Casper for several weeks prior to this date. On April 28, appellant came to the sales lot as a prospective car buyer, introduced himself as Frank Schleiger and was permitted to test drive the 1966 Ford Mustang car, which is the car in question, for about an hour. This car was missing from the sales lot early the following morning. Under the evidence it was next seen in the Province of Saskatchewan, Canada, on May 4, 1967, when it was being driven by appellant and where it was involved in an accident. There were no license plates on the car while it was on the sales lot but when first seen in Canada by a Canadian Mounted Policeman it had a license plate on it issued by the State of Washington to one Frank Schleiger, which was an alias used by appellant. At the time of arrest in Canada, appellant advised the officer that he was the owner of the Ford Mustang. The manager of the Casper sales lot positively identified the car recovered in Canada from appellant as the vehicle stolen from the sales lot.
Appellant strongly urges here that the Government failed to sustain its burden of proving him sane after the issue of insanity was injected into the trial. As he contends, the Government does have the burden of proving beyond a reasonable doubt the mental capacity of an accused to commit the offense charged when the issue of mental competency is raised.1 Under such circumstances, this court, in Wion v. United States, 325 F.2d 420, set out the guidelines for determining whether the Government has met its burden in a particular case. There Chief Judge Murrah, speaking for an en banc court, stated "The jury is then to be told that, as applied to their case, the test for criminal responsibility means that before they may return a verdict of guilty, they must be convinced beyond a reasonable doubt that at the time the accused committed the unlawful act, he was mentally capable of knowing what he was doing, was mentally capable of knowing that it was wrong, and was mentally capable of controlling his conduct." Id. at 430.
We will look at the record in the case in the light of Wion. The Government, in its case in chief, put on its evidence as to appellant's participation in the crime charged and rested. The appellant then came forward and asserted the defense of insanity. One of the witnesses for the defense on this issue was Dr. Herrold, who specializes in psychiatry at Cheyenne, Wyoming. The doctor had been appointed by the trial judge to examine the accused and to determine if he was mentally competent to the extent that he understood the nature of the charge against him and would be able to properly assist in his own defense. The doctor's report, prior to trial, had been in the affirmative. Dr. Herrold's testimony at the trial was not very beneficial to the defense. On cross-examination, the doctor testified, in substance, that even if the defendant, on the date of the crime, had as claimed, taken a large quantity of the drug desoxyn together with alcohol, he would not have been rendered incapable of knowing what he was doing for more than a few hours and that such condition certainly would not have lasted from April 28 to May 4. The doctor also testified that a person rendered incapable of knowing what he was doing by the above means would not be able to drive a car very far because the eye muscle co-ordination would be seriously affected.
In rebuttal, the Government called Dr. Brown, a physician and surgeon in Casper, Wyoming, who had studied psychiatry as a part of his medical training and who, within the judgment of the trial judge, was qualified in the field of psychiatry. This doctor had examined the accused on April 12, 1967, prior to the date of the offense at the request of local authorities at Casper. Dr. Brown gave the opinion that Webber was sane on the date of the examination. The doctor saw Webber again on April 15 and testified that on both occasions the accused "knew the difference between right and wrong," that "he had the mental capacity to understand the nature and character of his conduct" and that there was nothing about the accused "that would deprive him of the ability of the governing power of his mind."
Considering this expert testimony, together with all of the other evidence in the record, we must conclude that there was sufficient evidence from which the jury could find, as it did, beyond a reasonable doubt, that the accused was not mentally incompetent as tested by Wion v. United States, supra.
The instructions given to the jury on the defense of insanity are attacked by appellant. We have carefully considered all of these instructions and they do embody all of the teachings of the Wion case. It is true that they are lengthy, probably unnecessarily so, because there is some repetition in them. They are in no way inconsistent with Wion or any of the other cases from this circuit on mental incompetency. The attack upon them is not well founded.
Appellant's next contention related to his alibi defense. In this connection, it should first be pointed out that counsel for the defendant, in his opening statement to the jury, relied only on the defense of insanity and made no mention of the alibi defense. Likewise, from a reading of the testimony of appellant, who took the witness stand in the trial, there is no indication there of an alibi as the whole of his testimony goes to the issue of insanity....
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