Petition for Rehearing In Banc Denied December 4, 1956.
FAHY, Circuit Judge.
These appeals question two separate convictions of robbery at two separate trials.
On September 10, 1954, he was judicially determined "mentally competent and able to understand the proceedings against him and properly to assist in his own defense." He was tried for one of the robberies, case No. 12795, in November, 1954, and for the other, case No. 12879, in May, 1955.
In No. 12795 the robbery occurred at the Ebbitt Hotel in Washington. The night manager testified that about 3:30 a. m. the accused entered the hotel and requested a room. He was informed the hotel was filled and appeared to leave; but he returned with a bellboy in front of him and said, "Let me have the money or I'll kill this guy." The manager placed about $91.00 on the counter. Appellant scooped up the money, put it in his pocket and left. The night manager testified that appellant had a gun in the bellboy's back.
In No. 12879, the robbery occurred at the Court Hotel on Sixth Street, Northwest. Douglas appeared there also at about 3 a. m. asking for a room. During the discussion with the night manager, as the latter testified, Douglas walked around the desk, stuck a revolver into the witness' side and demanded all his money, threatening to kill him. The witness handed over his wallet, asking its return on sentimental grounds. Douglas took the money, approximately $9.00, and left the wallet on the desk. He then ordered the witness into the adjoining parlor, felt for a lock, found none, and pulled the door shut. He left in a few minutes, saying if the witness called the police he would come back and kill him.
The events unquestionably occurred substantially as above outlined. The contention on appeal is principally that evidence of the diseased mental condition of the accused requires us to hold that the trial judges should have directed verdicts of acquittal on the ground of insanity. See § 24-301, D.C.Code 1951, since amended by Pub.L. No. 313, 84th Cong. 1st Sess., August 9, 1955.
The United States first suggests that such a direction would have been unconstitutional because if it had been given then the trial court would have been required to confine accused to St. Elizabeths Hospital pursuant to section 24-301 of the Code, which would have deprived him of an opportunity to obtain an outright acquittal at the hands of the jury.
There was evidence in both trials that the accused was of unsound mind when the robberies occurred. The prosecution therefore was under the necessity of establishing to the satisfaction of the jury beyond a reasonable doubt that the robberies were not the result of Douglas' insanity. Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L. Ed. 499. There, in the course of an exhaustive review, the Supreme Court held:
And see Tatum v. United States, 88 U.S. App.D.C. 386, 190 F.2d 612. Restating the matter within the rule prevailing in this jurisdiction since Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430, in order to justify a conviction the proof, considered with the presumption of sanity, must exclude beyond a reasonable doubt the hypothesis that the conduct indicted was the product of a diseased mind.
We outline the evidence relevant to this question. In No. 12795 two of the psychiatrists who testified, Drs. Perretti and Gilbert, had examined the accused in December, 1952, at the request of Chief Judge Laws. This was about three months after the robbery. Dr. Perretti concluded that Douglas was of unsound mind, suffering from a psychosis, symptoms of which he described. He said that although it could not definitely be established how long the mental illness would take to reach the state he found he believed it went back as far as September.
Dr. Gilbert testified he examined the accused on December 6 and 13, 1952, and was of opinion he was of unsound mind suffering from dementia praecox, based on symptoms he described and on information Douglas supplied about his past life. In his opinion the accused had been suffering from a mental disorder or a mental disease at least for several years.
On cross-examination Dr. Gilbert was asked whether the disease or disorder he found in December caused the crime, and answered, "It contributed largely to it, I would say, by reason of the serious nature of the disease." Dr. Perretti was not asked to express an opinion on causation of the robbery.
Douglas' sister testified he had attempted suicide on three or possibly four
The prosecution called Dr. Epstein, one of the phychiatrists responsible for the treatment of the accused at St. Elizabeths Hospital where he remained from January 16, 1953,
The Government relies on the testimony of the night manager and bellboy at the Ebbitt Hotel where the robbery in No. 12795 occurred, and testimony of the arresting officers. This covered the conduct of Douglas in connection with and after the robbery, including statements made soon after. The Government argues that this testimony disclosed to the jury normal conduct.
In No. 12879, the expert opinion evidence consisted only of the testimony of Dr. Gilbert, who said as before that he had examined Douglas at the jail December 6 and December 13, 1952, as a result of which he arrived at the opinion that he was of unsound mind, suffering from the most common type of mental disorder — dementia praecox. The symptoms of hallucinations he found were based upon what Douglas himself told the witness. The doctor went into some detail. He said he believed the diseased condition had existed for a considerable period of time, for "several months" or "at least a few years"; that if Douglas had committed the unlawful act in September, "from the symptoms present I would think there was a very definite causal relation."
Douglas' sister gave substantially the same testimony in this case as in No. 12795. She also said that on some days Douglas acted perfectly normal and on others he did not and that in her opinion he was suffering from a mental disease during April and May, 1952, the period to which most of her testimony related.
Other testimony in No. 12879 was that of the night manager of the Court Hotel,
The police officers who arrested Douglas and who took his statement gave testimony in No. 12879 substantially like that given by them in No. 12795. Douglas' statement was admitted in evidence. The officers said he talked normally, was fully aware of what he was doing, and gave no indication of any delusions.
Each case was submitted to a jury without a request by Douglas' counsel for a directed verdict on the ground of insanity. In both cases the District Court charged the juries on the issue of insanity, and in both cases the juries refused to find Douglas not guilty by reason of insanity. Among the instructions, closely alike in each case, was one that when some evidence of mental disease or defect is introduced then the sanity of the accused, like all other facts, must be proved as part of the prosecution's case to the satisfaction of the jury beyond a reasonable doubt, since the burden of proof is upon the prosecution and this burden applies to every element necessary to constitute the crime charged; that unless the jury believed beyond a reasonable doubt either that he was not suffering from a diseased or defective mental condition or that the act was not the product of such abnormality they must find the accused not guilty by reason of insanity; but that he would be responsible for his unlawful act if there was no causal connection between such mental abnormality and the wrongful act.
In an appropriate case there is a duty to set aside a verdict of guilty and to direct a verdict of not guilty by reason of insanity — a duty to be performed with caution, however, because of the deference due to the jury in resolving factual issues.
As to the criteria, or tests, to be used in resolving this issue Durham gives greater latitude than theretofore had prevailed in this jurisdiction. We had said in Holloway, following the M'Naghten rule, 8 Eng.Rep. 718, that "The ordinary test of criminal responsibility is whether defendant could tell right from wrong", but we had there added, "A slightly broader test is whether his reason had ceased to have dominion of his mind to such an extent that his
Appellant urges that the evidence affords no legal support for a finding beyond a reasonable doubt that mental disease did not cause the indicted conduct, and that therefore we should hold that the District Court erred in not directing verdicts of not guilty by reason of insanity. His position gains support from the undeniable fact that treatment rather than imprisonment for crime was appropriate for Douglas in December, 1952, within three months of the robberies. He was then formally adjudged to be of unsound mind. And in No. 12795 Dr. Epstein, the Government's witness, confirmed that when Douglas reached the hospital in January, 1953, he was suffering from a serious mental disease. Douglas remained at the hospital for about eighteen months. Two doctors in No. 12795, and one in No. 12879, who found him insane in December, 1952, testified that such a condition had prevailed the previous September when the robberies occurred. Dr. Gilbert testified in both trials that the condition contributed largely to the robberies. Dr. Perretti was not asked about this. The Government introduced no expert evidence of sanity in September or during the succeeding twenty months. Two of the doctors who testified had been appointed by Chief Judge Laws to examine Douglas. The third was a member of the staff of St. Elizabeths Hospital and had examined him in that capacity. The disinterested, expert testimony in each trial casts a deep shadow over the mental capacity of Douglas in September 1952. As the Supreme Court said in Davis v. United States, supra [160 U.S. 469, 16 S.Ct. 358], "the vital question * * * is whether, upon all the evidence, by whatever side adduced, guilt is established beyond reasonable doubt", which means, as
True, there was non-expert testimony. But this, as will be seen from its outline earlier in this opinion, cut both ways, at least as deeply in the direction of insanity as of sanity. Our judicial conclusion that as a factual matter a reasonable doubt was created by the disinterested medical testimony, coupled with the adjudication of unsoundness of mind and the hospitalization for eighteen months, is not changed by the lay witnesses who testified only as to Douglas' conduct during the robberies and shortly thereafter.
Holloway is not a barrier to our conclusion. It is there said that the judgment of the psychiatrist, while relevant is not necessarily controlling, and that after the matter has been submitted to the jury and they have declared that there is no reasonable doubt of the defendant's sanity, "their judgment should not be disturbed on the ground it is contrary to expert psychiatric opinion." 80 U.S.App.D.C. at page 5, 148 F.2d at page 667. We agree, but this is not authority for disregarding expert testimony. It must be considered with the other evidence, not arbitrarily rejected. A jury may not be upheld in arbitrarily convicting of crime.
It does not follow that we should now direct that Douglas be acquitted by reason of insanity. Dr. Epstein did not testify in No. 12879, no doubt because his testimony was deemed privileged under Taylor v. United States, 95 U.S.App.D.C. 373, 222 F.2d 398. By reason of the amendment of § 14-308, D.C.Code 1951 his testimony would now be available. Furthermore, there are ambiguities in the testimony which a retrial might resolve. And the dearth of the prosecution's non-medical testimony, dating on the present records only from the time of the robberies, might be overcome. We cannot say as to these matters. But they justify the exercise of our discretion to permit new trials. In Bryan v. United States, 338 U.S. 552, 559, 70 S.Ct. 317, 94 L.Ed. 335, a new trial was authorized although the evidence on the first trial of that case, as here, was held not to support a conviction. An additional reason for this disposition of the appeals is that it does not appear that the trials were conducted with awareness that Durham does not bar testimony, if available, in terms of the older tests of insanity to which we have referred, and, furthermore, does not bar instructions by the court permitting jury consideration of such tests having support in the evidence, provided that the Durham decision is followed in its definition of the ultimate jury question to be decided.
The only other question which need be mentioned concerns the admission of testimony of Dr. Epstein in No. 12795 which appellant claims was privileged. See Taylor v. United States, supra. Since § 14-308, D.C.Code 1951 has been amended so as to permit such testimony where insanity is relied upon as a defense, the question will not recur in event of new trials.
Reversed and remanded for further proceedings not inconsistent with this opinion.
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