Marx v. State

¶1Dissenting Opinion

¶2I concur in the holding of the majority opinion that the Criminal Court of Marion County had jurisdiction to try the appellant, and that there was no isue of criminal insanity to be tried under the pleadings.

¶3But it is more than obvious there should have been a special plea of insanity filed by appellant’s. counsel under §9-1701, Burns’ 1956 Replacement, and for this reason he was denied representation by counsel under Section 13 of our Bill of Rights, as well as due process under the Fourteenth Amendment.

¶4• . The issue under §9-1706a, Burns’ -1956 Replacement, only goes to the capacity of the accused to know and comprehend the nature of the criminal action against him and to make his defense thereto. When the trial court found against the appellant on this issue, he did not find he was of sound mind or sane at the time of the offense charged was committed, which is the issue presented by a special plea of insanity under §9-1701, Burns’ 1956 Replacement.

¶5It appears from the record that appellant had been committed to the Central State Hospital. Before such commitment, the law requires a court to find and adjudge the person is insane in fact. Section 22-1207, Burns’ 1950 Replacement [Acts 1927, ch. 69, §7,' p. 179; 1931, ch. 13, §1, p. 19; 1933, ch. 263, §1, p. 1166]. The insanity adjudicated must involve a definite psychosis. Section .22-1210, Burns’ 1950 Replacement. The presumption is appellant remained insane. State ex rel. *465Quear v. Madison Circuit Court (1951), 229 Ind. 503, 506, 99 N. E. 2d 254. There is nothing in the statement by the Superintendent of the Central State Hospital to the contrary.

¶6Admittedly, appellant could still be punished for his criminal acts if at the time he had mental capacity to know and comprehend the nature and consequences of his act and could distinguish right from wrong, and had will power sufficient to control his impulse to commit the act charged. Stevens v. State (1869), 31 Ind. 485; Bradley v. State (1869), 31 Ind. 492; Goodwin v. State (1884), 96 Ind. 550; Plake v. State (1890), 121 Ind. 433, 23 N. E. 273; Morgan v. State (1921), 190 Ind. 411, 130 N. E. 528; Kallas v. State (1949), 227 Ind. 103, 83 N. E. 2d 769; Flowers v. State (1956), 236 Ind. 151, 139 N. E. 2d 185. But without a special plea of insanity this defense could not be presented and tried.

¶7Appellant’s trial counsel was duty bound to present every proper defense the law of the land authorized.

“It is the right of the lawyer to undertake the defense of a person accused of crime, regardless of his personal opinion as to the guilt of the accused; otherwise innocent persons, victims only of suspicious circumstances, might be denied proper defense. Having undertaken such defense, the lawyer is bound, by all fair and honorable means, to present every defense that the law of the land permits, to the end that no person may be deprived of life or liberty, but by due process of law.” Canon 5, Canons of Professional Ethics.

“In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense.” Canon 15, Canons of Professional Ethics.

¶8The defense of insanity was so apparent that failure to assert- it amounted to inadequate representation by *466counsel. 26 Ind. L. J., p. 234, et seq. and authorities there cited.

¶9Appellant’s trial counsel knew he was representing an accused who had been adjudged insane with a definite psychosis, and that the law still presumed him insane. Although it is possible the appellant could be held criminally responsible for the act charged, the conclusion is inescapable that any lawyer who failed to make such a defense only gave perfunctory or casual representation, which is a denial of due process under the Fourteenth Amendment, as well as denial of the right to counsel under §13 of our Bill of Rights. Powell v. Alabama (1932), 287 U. S. 45, 53 S. Ct. 55, 77 L. Ed. 158, 84 A. L. R. 527; Abraham v. State (1950), 228 Ind. 179, 91 N. E. 2d 358; Rhodes v. State (1927), 199 Ind. 183, 156 N. E. 389; Castro v. State (1925), 196 Ind. 385, 147 N. E. 321; Wilson v. State (1943), 222 Ind. 63, 51 N. E. 2d 848; Bradley v. State (1949), 227 Ind. 131, 84 N. E. 2d 580; Sanchez v. State (1927), 199 Ind. 235, 157 N. E. 1; State ex rel. White v. Hilgemann (1941), 218 Ind. 572, 34 N. E. 2d 129; Knox County Council v. State ex rel. McCormick (1940), 217 Ind. 493, 29 N. E. 2d 405, 130 A. L. R. 1427; 26 Ind, L. J., p. 234, et seq. and authorities there cited.

¶10Appellant’s counsel on appeal did not represent him in the trial court. The fact that appellant’s brief fails to contend he was denied due process and representation by counsel should not blind us to what this record discloses without contradiction. Many times this court has held it may properly notice the record and the law to be applied even though not properly presented by counsel.

“While we are not obliged to search for errors not made manifest by the record as the appellant brings it to us, we are not so restricted by that rule that we are required to hold a pleading sufficient when it is clearly insufficient, and when to *467do so would create a precedent well calculated to mislead the profession and lend confusion to well settled principles of pleading and practice.” Big Creek Stone Co. et al. v. Seward et al. (1895), 144 Ind. 205, 209, 42 N. E. 464, 43 N. E. 5.

“We were compelled to study the bill of exceptions, and, having done so, we were not at liberty to disregard what our eyes perceived as to the facts in their true relation to each other. Where resort to the record is necessary, the case will be determined by the record, and in such a case the court will not regard itself as governed by the conceptions of counsel on either side as to the nature of the controlling facts.” Cleveland, etc. R. Co. v. Moore (1907), 170 Ind. 328, 363, 364, 82 N. E. 52.

“Notwithstanding the failure of counsel to present the question, the court may consider and decide a question presented by the record, and may go outside the briefs of counsel for reasons upon which to base the decision in order to do justice to the parties.” White v. White (1935), 208 Ind. 314, 317, 196 N. E. 95.

The federal rule is substantially the same.

“Although no objection as to the form of these instructions is urged here by counsel for petitioner, this Court in a criminal case may notice material error within its power to correct, even though that error is not specifically challenged, and certainly should do so, even in cases from the District of Columbia, where life is at stake. Brasfield v. United States, 272 U. S. 448 . . .” Fisher v. United States (1946), 238 U. S. 463, 467, 468, 66 S. Ct. 1318, 90 L. Ed. 1382, 166 A. L. R. 1176.1

¶11*468It may be contended that appellant’s trial counsel had determined in his own mind that his client was not criminally insane at the time of the commission of the act charged. But he was not a psychiatrist, and we must presume that appellant was committed to the Central State Hospital in conformity with the statutes, and that such commitment was based upon the medical testimony of three doctors. Nor can we presume the medical experts of the Central State Hospital were derelict in their duty in not certifying a restoration of sanity. The probabilities that appellant’s uncontradicted insanity, existing at the time of the crime, would affect his ability to know right from wrong, to know and comprehend the nature and consequences of his act and to control his impulse to commit the act are so great that the issue should have been presented. A casual examination of the statutes and the cases involved would have disclosed this was the only proper way to represent this accused and to guarantee him his constitutional rights. I see no reason for this court to affirm this judgment when this record invites other proceedings to adjudicate it void.

¶12I would reverse the judgment.

¶13Note. — Reported in 141 N. E. 2d 126.