Public-domain · open source
OpenJurist

379 S.W.2d 730

Etherton v. Commonwealth

Court of Appeals of Kentucky

Decided May 29, 1964

Court of Appeals of Kentucky · decided 1964-05-29

Cited by 6 later decisions — most recently March 1971

2 federal appellate · 4 state decisions

Key passage — most relied on by later courts

“203.340 [263b-17] Mental examination of habitual criminals "(1) When a person who has been twice previously convicted of a felony, is indicted by a grand jury as an habitual criminal, the circuit clerk of the court in which he is indicted shall give notice of the indictment to the Commissioner of Mental Health within seven days after the indictment is returned by the grand jury. The commissioner shall cause such person to be examined by a psychiatrist already in the employ of the department, to determine his mental condition and the existence of any mental disease or defect which would affect his criminal responsibility. This examination shall be made without expense other than the amount to cover necessary travel, as provided by law for any other employe of the state traveling on official business. "(2) The psychiatrist making the examination shall submit a written report of his findings to the judge of the court having jurisdiction, who shall make the report available to the prosecuting attorney and the attorney for the defendant. "(3) The commissioner may decline to cause such examination to be made if the number of psychiatrists on duty in the department is insufficient to spare one from his regular official duties, in which event the commissioner shall notify the clerk of the circuit court to that effect within three days.”

quoted by 1 later decision, including William Ray Jones v. David L. Davis, Warden

Relies on Harrod v. Commonwealth · Mercer v. Commonwealth

Good law ✅— No negative treatment on recordhow we know

Decided 1964-05-29

View the full empirical analysis of this case →

MILLIKEN, Chief Justice.

¶1The appellant, Kenneth Wayne Etherton, serving a life sentence under the Habitual Criminal Act, made an RCr 11.42 motion in the court of his conviction to vacate the judgment. Counsel who had represented him in his trial was appointed and did represent him at the hearing on his motion, and the relief sought was denied. This is an appeal from the ruling denying the relief sought by his motion to vacate the judgment of conviction.

¶2The issue raised pertains to the construction placed upon KRS 203.340 which requires prompt notice to be given to the Commissioner of Mental Health in cases where an indictment is returned under the Habitual Criminal Act so that a Department psychiatrist may examine the defendant “to determine his mental condition and the existence of any mental disease or defect which would affect his criminal responsibility … ” when the Department can spare a psychiatrist from his regular duties. A Department psychiatrist examined the prisoner about eighteen months after the indictment, but before his final trial, and found him of sufficient understanding of right and wrong to stand trial. The contention raised here is that the psychiatric examination given did not determine his mental condition at the time of the commission of the offense — that it did not determine

¶3*731•whether he suffered any mental disease or defect which would affect his criminal responsibility” at the time of the commission of the crime.

¶4The statute, KRS 203.340, has been construed as not requiring such an examination as being a condition precedent to subjecting the accused to trial, and failure to hold such an examination does not void the conviction. Mercer v. Commonwealth (1961), Ky., 346 S.W.2d 761. In Harrod v. Commonwealth (1950), 311 Ky. 810, 226 S.W.2d 4, the purpose of the statute was found to be to determine whether such an accused should be sent to one of the State’s penal institutions or to one of its mental hospitals, and we expressly declared, “It is manifest that the prisoner acquires no right to such an examination under the statute itself.”

¶5We adhere to that construction of the •statute, and the judgment is affirmed.

/379/sw2d/730 · .json · Public domain