Turner v. State

Ed. F. McFaddin, Justice, concurring. There is one point in this case that has given me most serious concern : it relates to the refusal of the Trial Court to allow Turner’s attorneys to cross-examine Drs. Drewrey and Pruitt. But after reading the transcript, I have concluded that no error was committed under the situation existing. I am concurring to give the reasons for my conclusions on this point.

Here was the situation existing:

(1) Turner’s attorneys filed a motion that he be committed to the State Hospital for examination as to sanity. The Court denied that motion; but — at the request of the defendant — appointed Dr. L. E. Drewrey and Dr. W. H. Pruitt to examine Turner and report to the Court their findings as to his present mental condition.

(2) Each of these doctors filed a written report with the Court, stating the opinion of such doctor to be that Turner was sane at the time of the commission of the alleged offense, and also at the time of the examination.

(8) Then Turner’s attorneys filed a motion to be allowed to cross-examine the two doctors, and the Court denied the motion. It was this ruling, denying the desire of the lawyers to cross-examine the doctors, that gave me serious concern; but the record shows that the doctors were appointed at the request of Turner and his attorneys. Since they were Turner’s selected doctors, he would have no right to cross-examine them. Here is an exact copy of page 33 of the transcript:

“Thereupon, and in open Court, counsel for defendant file a Motion to commit the defendant to the State Hospital for Nervous Diseases; this motion is presented, argued, considered and by the Court overruled. Exceptions of the defendant saved.

“At the request of the defendant, it is now ordered and adjudged by the Court that Dr. L. E. Drewrey and Dr. W. E. Pruitt, practicing physicians of Camden, Ouachita County, Arkansas, are hereby appointed to examine the defendant at such time and place as they may deem proper, but without unnecessary delay, and to report to the Court the result of their examination.” (Italics my own.)

The law has always been that a person presently insane should not be tried during such condition. Section 157 of the Code of Practice in Criminal Cases (adopted in this State in 1869) became § 2277 of Kirby’s Digest, and § 3881 of Pope’s Digest; and in Duncan v. State, 110 Ark. 523 , 162 S. W. 573 , we said of these Statutes:

“The statutes of this State provide that ‘if the court shall be of the opinion that there are reasonable grounds to believe that the defendant is insane, all proceedings in the trial shall be postponed until the jury be impaneled to inquire whether the defendant is of unsound mind, and if the jury shall find that he is of unsound mind the court shall direct that he be kept in prison, or conveyed by the sheriff to the lunatic asylum, and there kept in custody by the officers thereof until he is restored. . . .’ (Kirby’s Digest, § 2277); also that, where a defendant appears for judgment, ‘he may also show that he is insane. ■ If the court is of the opinion that there be reasonable grounds for believing he is insane, the question of his insanity shall be determined by a jury of twelve qualified jurors,’ etc. Kirby’s Digest, § 2440.

■ “¡Both of these statutes are, in substance, reaffirmation of common law rules of criminal procedure, and the practice thereunder has been referred to and recognized in many decisions of this court, the reason for these statutes and the original rules of procedure which they, reaffirm being that the trial should be postponed when the defendant is. incapacitated, on account of his unsoundness of mind, to rationally conduct his defense, or, after verdict, to intelligently give reason why judgment should not be pronounced.”

Other cases involving this Statute are Kelley v. State, 156 Ark. 188 , 246 S. W. 4 ; and Wilhite v. State, 158 Ark. 290 , 250 S. W. 31 .

To force a defendant to trial while he is presently insane would violate the fundamental principles of common law justice. Blackstone, Book 4, page *24 (star page), says:

“Also if a man in his sound memory commit a capital offence, and before arraignment for it he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes, of non-sane memory, execution shall be stayed: for peradventure, says the humanity of the English law, he might have alleged something in stay of judgment or execution. ...”

See also Annotation 142 A. L. E. 961, entitled: “Investigation of present sanity to determine whether accused should be put, or continue, on trial. ’ ’

In the case of Forby v. Fulk, 214 Ark. 175 , 214 S. W. 2d 920 , we held that the said § 3881 of Pope’s Digest— the Statute referred to in the quotation from Duncan v. State, supra — had been repealed by Initiated Act No. 3 of 1936. At that time, the said Initiated Act contained language which made it mandatory for the Trial Court to send the defendant to the State Hospital for examination as to mental condition (either at the time of the alleged crime or at the time of the trial), whenever such suggestion was made. Lambert v. State, 213 Ark. 567 , 211 S. W. 2d 431 . Thus the defendant’s right, to have his present sanity investigated prior to trial for the alleged offense; was fully protected. There is some language in Forby v. Ftilh, supra, which might be understood to indicate that insanity at the time of trial could be interposed as a defense at the time the defendant is being tried for the offense alleged. But insanity at the time of the trial is not a defense to the crime. It is merely a right to have the trial for the crime postponed until the accused becomes sane. The fact that a man might be perfectly sane when he committed the offense, and be insane at the time of the trial, is no defense to the alleged crime. Present insanity is only a ground for postponement of trial for the alleged offense.

After our opinion in Forby v. Fulk, supra, the Legislature, by Act 256 of 1949, in effect eliminated from Initiated Act No. 3 of 1936 so much thereof as made it mandatory on the Circuit Court to commit an accused to the State Hospital for examination, regardless of when the said motion should be made; because the Act 256 provided that in a case like the one here, the Circuit Court would not be required to commit the accused to the State Hospital unless the Circuit Court “. . . has reason to believe that the defendant might be insane, or upon report of the examining physicians to the effect that there are reasonable grounds to believe the defendant to be insane. . . .” Thus, the effect of Act 259 of 1949 was to reinvest the Circuit Court with discretion, which, of course, must be exercised reasonably and judiciously, and without arbitrariness or caprice.

The point that the appellant here urges is that the Court was arbitrary in the exercise of its discretion in refusing to allow appellant’s counsel to cross-examine Drs. Drewrey and Pruitt. If these doctors had been selected by the State or by the Court, then I am firmly of the opinion that the counsel for Turner would have had the right to cross-examine the doctors, and that a refusal of such right would be an arbitrary act. But here, the record— as copied in this opinion — shows that these doctors were requested by the attorneys for the accused. I can see nothing arbitrary in the Court refusing the attorneys for the accused the right to cross-examine the doctors that they had selected.

Therefore, I concur in the affirmance of this case.