Welch v. Beto

• Decision Date: 20 October 1964
• Docket Number: Civ. A. No. 64-H-103.
• Citation: 234 F. Supp. 484
• Parties: Eugene WELCH, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.
• Court: U.S. District Court — Southern District of Texas

234 F. Supp. 484

Eugene WELCH, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.

Civ. A. No. 64-H-103.

United States District Court S. D. Texas, Houston Division.

October 20, 1964.

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Robert Doss, Denison, Tex., and Charles E. Hughes, Sherman, Tex., for petitioner.

Waggoner Carr, Atty. Gen. of Texas, Sam R. Wilson, Asst. Atty. Gen., Houston, Tex., for respondent.

NOEL, District Judge.

Eugene Welch, petitioner herein, a prisoner in the custody of the Texas Department of Corrections in this District and Division, seeks a writ of habeas corpus under 28 U.S.C.A. § 2241.

Upon filing his application, petitioner, under sentence of death, prayed for a stay of execution pending the determination of the questions raised by his petition. Being of the opinion that a stay of execution should be granted in order that counsel might prepare and submit adequate briefs, and in order that the Court might give full and adequate consideration to the evidentiary and legal questions presented, the Court did order that the execution be stayed under 28 U.S.C.A. § 2251 until final disposition of these proceedings.

Petitioner complains that the judgment and sentence of the Fifteenth District Court of Grayson County, Texas, by virtue of which he is imprisoned and faced with execution, are in violation of the rights to due process and equal protection of the laws guaranteed him by the Fourteenth Amendment to the United States Constitution.

Petitioner's trial on an indictment charging him with murder with malice was begun January 14, 1963. His sole defense was that he had been insane at the time he caused the death of the deceased. He also contended that he was insane at the time of trial. Both issues were hotly contested.

Dr. Wells, a psychiatrist, testified that he had examined petitioner and had conducted certain tests to aid in the determination of petitioner's mental condition. Those tests were said by Dr. Wells to have shown petitioner to have the mental capacity of a twelve-year-old. Dr. Wells further testified that in his opinion petitioner had not known the nature of his acts or the difference between right and wrong either at the time he caused the death of the deceased or at the time of trial.

The prosecution countered Dr. Wells' testimony with the testimony of a number of witnesses, among them a doctor who had had several periods of observation of petitioner and a farmer for whom petitioner had worked during the two months preceding the killing.

On January 24, 1963, petitioner was found guilty by the jury, which resolved the issues of insanity against him. The Court of Criminal Appeals of Texas, on the appeal, found that the evidence was sufficient to sustain the jury findings that petitioner was sane at the time the offense was alleged to have been committed and at the time of trial, and affirmed the conviction. Welch v. State, Tex.Cr.App., 373 S.W.2d 497 (1963).

Following denial by the Court of Criminal Appeals of Texas of petitioner's motion for rehearing of the appeal, his counsel filed with the trial judge, on January 21, 1964, a motion pursuant to art. 932b, § 3, Vernon's Ann.Tex.Code of Crim.Proced., requesting a presentence hearing thereunder to determine whether petitioner was then sane. Attached to the motion was an affidavit of Dr. Wells asserting that petitioner was insane.

After hearing the arguments of counsel, the trial judge denied the motion for a presentence sanity hearing. Upon the following day petitioner was sentenced to death by electrocution.

Counsel for petitioner attempted to appeal the denial of the motion for a presentence sanity hearing to the Court of Criminal Appeals of Texas, but leave to file the appeal in that court was denied on February 4, 1964 "for want of jurisdiction of the attempted appeal."

On February 28, 1964, counsel for petitioner filed with the trial judge a motion requesting a post-sentence sanity hearing under art. 932b, § 4, Tex.Code of Crim. Proced., which referred to the affidavit of Dr. Wells which had been filed with the motion under § 3. This motion was also denied.

On February 29, 1964, an application for writ of habeas corpus was filed with the state trial court. That application set forth three contentions by which petitioner asserted he was denied his constitutional rights:

(1) The denial of his motion for a presentence sanity hearing under art. 932b, § 3, Tex.Code of Crim.Proced.;

(2) The denial of his motion for a post-sentence sanity hearing under art. 932b, § 4, Tex.Code of Crim. Proced.; and

(3) The entire trial was from its inception influenced by mob hysteria, preventing petitioner from receiving equal treatment and due proccess of law.

The application for a writ of habeas corpus was denied by the trial judge. Thereupon, an application for a writ of habeas corpus containing the same allegations was submitted to the Court of Criminal Appeals of Texas. It was denied March 4, 1964.

The same allegations of constitutional violations asserted by petitioner in his state court petition are now made in his application to this Court for federal habeas corpus relief. Petitioner appears properly to have exhausted his state remedies on the questions presented.

Upon the filing of petitioner's application in this Court, an evidentiary hearing was ordered. It commenced on March 18, 1964 and was reconvened and concluded on March 23, 1964. At the hearing, testimony was received from witnesses for both petitioner and respondent. A full record of the proceedings in the state courts, including a statement of facts from petitioner's trial, was submitted to the Court. Following the hearing, counsel were instructed to submit briefs. The briefs have been received and the matter is now before the Court for decision.

For petitioner to prevail on either of his first two contentions, it must be a violation of constitutional rights to sentence or execute an insane man. Although the Supreme Court has not asserted in so many words, it has implied that executing an insane man would amount to a denial of due process.¹ This is evident from Solesbee v. Balkcom, 339 U.S. 9, 70 S.Ct. 457, 94 L.Ed. 604 (1950), where the Court made a determination of "whether the method applied by Georgia here to determine the sanity of an already convicted defendant sentenced to execution offends due process." This issue would never have been reached if it were not a denial of due process to execute an insane man, for then no inquiry into the existence of insanity, much less the adequacy of the proceeding to determine that existence, need ever have been made. See also, Caritativo v. Calif., 357 U.S. 549, 78 S.Ct. 1263, 2 L.Ed.2d 1531 (1958); Phyle v. Duffy, 334 U.S. 431, 68 S.Ct. 1131, 92 L.Ed. 1494 (1948); and Nobles v. Georgia, 168 U.S. 398 (1897).

I do not agree with the respondent's apparent contention that because Mr. Justice Frankfurter in his dissent in Solesbee so eloquently stated the reasons why the Fourteenth Amendment prohibited the execution of an insane man, the majority in the case must have held that such an execution did not deny due process. Mr. Justice Frankfurter simply dissented from the majority's holding that the there attacked procedure to determine insanity before execution was constitutionally proper.² Furthermore, the Fourth Circuit in Snider v. Cunningham, 292 F.2d 683 at 686 (1961) has stated that the execution of an insane man would amount to a denial of due process, and relied upon the previously listed Supreme Court cases as authority for the proposition.

Whether the sentencing of an insane man constitutes a deprivation of constitutional rights is an unsettled question. Mr. Justice Frankfurter in his dissent in Solesbee pointed out that it offends our historical heritage to sentence as well as execute an insane man. To support his position he quoted from 1 Hale, The History of the Pleas of the Crown 34-35 (1736), as follows:

"`If a man in his sound memory commits a capital offense * * * and * * * if after his trial he become of non sane memory, he shall not receive judgment; or, if after judgment he become of non sane memory, his execution shall be spared; for were he of sound memory, he might allege somewhat a stay of judgment or execution.'" 339 U.S. at 18-19, 70 S.Ct. at 462.

It appears that the most cogent reason for not sentencing an insane man is that a defendant should understand the proceedings against him in order to assist his counsel in his plea for mercy. "On sentencing, or even on a motion to reduce sentence, particularly in a capital case, the most persuasive, if inarticulate, plea for mercy is often made by the defendant himself. Certainly the sentencing court should make sure that this final plea for life is not jeopardized by the helpless mind of the defendant." Jones v. United States, 117 U.S.App.D.C. 169, 327 F.2d 867 (D.C.Cir. 1963), dissenting opinion at 879. However, this reason is of no vitality here, for the trial judge in Texas has no discretion in imposing sentence, but must follow the verdict of the jury. Arts. 766-767, Tex. Code of Crim.Proced. Furthermore, the Supreme Court has held that a failure to give a defendant an opportunity to speak in his own behalf before sentencing is not a constitutional error subject to collateral attack. Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962).

For purposes of this case, however, the unconstitutionality of both sentencing and executing an insane man will be assumed without being decided, for I hold that the procedures employed in this case to determine the sanity of petitioner, before sentencing and impending execution, complied with due process.

The procedures provided by the pertinent statute, art. 932b, §§ 3 and 4, Tex.Code of Crim.Proced., are adequate safeguards. At the post-conviction stage of a capital case, it is entirely proper for a state to condition a prisoner's right to a sanity trial upon a...