Youtsey v. United States

• Decision Date: 13 November 1899
• Docket Number: 649.
• Citation: 97 F. 937
• Parties: YOUTSEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

97 F. 937

YOUTSEY v. UNITED STATES.

No. 649.

United States Court of Appeals, Sixth Circuit.

November 13, 1899

The plaintiff in error, Thomas B. Youtsey, cashier of the First National Bank of Newport, Ky., was indicted for violation of section 5209 of the Revised Statutes of the United States. The indictment embraced 27 counts. He was convicted upon the first 25 counts, and acquitted, by direction of the court upon the twenty-sixth and twenty-seventh counts. Eighteen of the counts upon which he was convicted embraced but three distinct transactions, charged in different ways, and were for the embezzlement or willful abstraction or willful misapplication of assets of the bank, with intent to defraud or injure the bank. The remaining seven counts were for making, or causing to be made, false entries on the books of the bank, or in the reports to the comptroller, with intent to deceive the officials and directors of the bank, or any agent of the comptroller appointed to examine the affairs of said bank. Each of these seven counts included a distinct transaction. The indictment was returned into court September 20, 1897. On the same day the accused came into court, and entered into a recognizance to appear for trial November 22 1897. On the latter date he came not, but made default, his counsel filing affidavits that his mental and physical condition was such that he was unable to appear. Upon the joint application of the government and the defendant, the cause was thereupon continued and set for hearing March 1 1898. On the latter day he appeared, waived arraignment, and entered a plea of 'Not guilty.' Thereupon his counsel filed the following petition, in these words: 'Now come counsel for defendant, and respectfully represent to the court that this cause should not be tried at this term of the court, but the same should be continued, for the reason that in the judgment of counsel, the defendant is not in a condition, mentally or physically, to undergo the ordeal of a trial of this cause at this time. They further represent to the court that the defendant is a confirmed epileptic; that since November 22, 1897, at which time this cause was last set for trial, and at which time the cause was continued, the defendant then suffered from a severe attach of epilepsy. The defendant has had another severe attack of epilepsy, and counsel state, in consultation with said defendant, and in preparation for trial of this cause at this term, the impairment of the memory of the defendant has been so manifest to them, and his condition, mentally and physically, is such, as, in their judgment, to warrant this application to the court for a continuance of this cause. They submit with this application the affidavit of three physicians, each of whom is personally acquainted with the defendant, and has prescribed for him for said epileptic attacks, and each of whom believes that the excitement resulting from the ordeal of this trial may possibly or probably result in another attack of epilepsy. Counsel for defendant desire to submit the mental and physical condition of this defendant to this court for such examination by competent physicians, and otherwise, as the court may deem best to make in order to determine whether the defendant should be subjected to a trial of this cause at this term. They further state that in the preparation of this cause for trial the impairment of the memory of the defendant has been such as to seriously interfere with its preparation; that he has been unable, by reason of said impairment of memory, to furnish counsel with any recollection of many of the vital transactions covered by said indictment, which ought to be personally within his knowledge; that this impairment of memory is such that in the opinion of counsel, from personal contact with him, and examination of the offenses charged in said indictment, he is unable to properly answer said charges, and that the impairment of said memory has been manifest from day to day, in the preparation of said cause for trial, in the failure of the defendant to remember transactions from day to day; and such impairment of memory and mental and physical condition warrant counsel, in their judgment, in making this application to the court for the continuance of the cause. Wherefore counsel pray, in view of the mental and physical condition of the defendant, as above stated, this cause be continued; and they further state that this application is not made for the purpose of delay, or to defeat the administration of justice, but solely on account of the mental and physical condition of the defendant as aforesaid, all of which is respectfully submitted. ' This was sworn to by one of the counsel. In support of this, the affidavits of three physicians were filed, the most important of which was that of C. Kearns, M.D., which was as follows: 'Dr. Chas. Kearns, being duly sworn, says that he is a physician in active practice in the city of Covington, Kentucky; that he is acquainted with the disease of epilepsy, its symptoms and its results; that he has been called to attend, professionally, Thomas B. Youtsey, on several occasions within the last year; that he knows the said Thomas B. Youtsey to be a confirmed epileptic; that he has examined him, to wit, on the 26th day of February, 1898, and finds that, as a result of his numerous attacks of epilepsy, his memory and judgment have become permanently impaired, that his memory is not reliable as to ordinary occurrences of the past, and that, in the judgment of this affiant, he is not in a condition to testify in behalf of himself as to business and other transactions in which he has been engaged. Affiant further says that, in the present condition of said Thomas B. Youtsey, the excitement and strain of a trial may possibly bring on an attack of epilepsy. ' The only journal entry touching this matter is in these words: 'This cause coming on to be heard, came the defendant (R. W. Nelson, of counsel), and filed a motion for the continuance of this cause; said motion being supported by the affidavits of Dr. Chas. Kearns, Dr. F. A. Davis, and Dr. E. M. Keeney. Argument was heard upon said motion, and the court, being now advised, overruled same, to which ruling of the court, defendant by counsel, comes and excepts. ' The trial was then proceeded with, but was interrupted for several days by reason of an epileptic attack suffered by the prisoner pending the trial, which necessitated an adjournment. The defendant did not testify in his own behalf. The trial resulted in a verdict of guilty upon the first 25 counts, upon which the court pronounced a judgment. For charge to jury see 92 F. 864.

A. C. Cassatt and Thomas McDougall, for plaintiff in error.

Wm. M. Smith, for the United States.

Before LURTON, Circuit Judge, and SEVERENS and CLARK, District Judges.

LURTON Circuit Judge, after making the foregoing statement of facts, .

The primal question which confronts the court arises upon the objection interposed by counsel for the plaintiff in error to a trial of the accused on account of his then nonsane mind and memory. The application was nominally for continuance, and the record entry simply shows that a continuance was refused. 'The action of a trial court upon an application for a continuance is purely a matter of discretion, and not subject to review by this court unless it be clearly shown that such discretion has been abused. ' Isaacs v. U.S., 159 U.S. 487, 16 Sup.Ct. 51. So far as this application and motion for continuance were based upon the fact that the prisoner was a confirmed epileptic, and that his counsel and medical advisers apprehended that the excitement and strain of a prolonged trial might induce another epileptic attack, it was addressed to the enlightened humanity and sound discretion of the lower court. The application, in that aspect, did not show any present inability to attend the trial, and promised no hope that any future trial would be attended by any less risk to the health or life of the accused. Under such circumstances, it was no abuse of discretion to proceed with the trial. But the petition of the counsel involved much more than a mere continuance on account of the physical condition of the defendant. In substance and legal effect, it also presented an issue of present insanity as a bar to any trial while that condition continued, and prayed a continuance for that reason, also. The blending of such an issue in bar of a trial with an application for a continuance upon that and another ground should not prejudice the right of the accused to have that issue considered and disposed of in some form of trial known to the law. The statutes of the United States present no mode for the presentation and trial of an issue of present insanity, when presented in bar of an arraignment, trial, judgment, or execution, and we must look to the common law for guidance in practice. It is fundamental that an insane person can neither plead to an arraignment, be subjected to a trial, or, after trial, receive judgment, or, after judgment, under go punishment. In 1 Hale, P.C. 34, 35, it is said:

'If a man in his sound memory commits a capital offense, and before his arraignment he becomes absolutely mad, he ought not by law to be arraigned during such frenzy, but be remitted to prison until that incapacity be removed. The reason is, because he cannot advisedly plead to the indictment. * * * And if such person of nonsane memory after his plea, and before his trial, become of nonsane memory, he shall not be tried; or, if, after his trial, he becomes of nonsane memory, he shall not receive judgment, or, if after judgment he becomes of nonsane memory, his execution shall be spared; for were he of sound memory, he might allege

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