APPEAL from the Circuit Court of Macon County; the Hon. RODNEY
A. SCOTT, Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
A jury found defendant guilty of murder and a sentence of 100 to 150 years was imposed. He appeals.
We note immediately that counsel for defendant accepted appointment on appeal willingly and with grace under conditions that were not within their normal professional obligation and that this appeal has been pressed with great vigor and careful diligence.
It is urged that the conviction must be reversed and the cause remanded for a new trial because, (1) the court refused to give proper instructions presenting the issue of defendant's sanity at the time of the offense to the jury; (2) of improper and prejudicial argument by the prosecution, and (3) prejudicial cross-examination by the State directed toward degrading and humiliating the defendant before the jury.
The event occurred in the early morning hours of July 21, 1968, at a Decatur hospital. Defendant had been admitted as a patient several days before for the treatment of an ulcer. In addition to medication directed towards the ulcer, drugs were prescribed for pain and as sedatives and tranquillizers. Defendant was described by his attending physician as uncooperative, mentally agitated and suffering from an anxiety neurosis. The physician did not testify to any mental defects or mental illness.
At the time concerned the victim, Arnett, and his wife, together with the latter's sister and husband, were at the hospital where the wife's father was critically ill and under intensive care. A portion of the time this group waited in a "sun room" area of the hospital. Defendant had left his hospital room and was also present in this area, attired in a hospital gown. He was reading in the sun room area or walking up and down in an adjacent corridor, during which time he was described as smoking and as waving or swinging his arms. There was such random conversation as defendant asking the victim for a cigarette and later when the family group decided to go out for food, defendant asked them to bring him some beer. They refused. Upon their return defendant was still present. The victim's wife, sister and brother-in-law, went into another lounge area. Arnett had laid down upon a couch in the sun room to sleep or dose. Defendant was still present in the room. Within a short time nurses at a nearby station heard breaking glass and defendant was discovered at a window in the sun room holding a lighted newspaper toward the curtains. A substantial fire ensued in the hospital, and thereafter the body of the victim was found with his head crushed. A broken metal smoking stand was considered to be the lethal instrument.
Several nurses testified that as they came up with fire extinguishers, defendant held the glass doors of the sun room and they understood defendant to say that he would kill them with the smoking stand which he held if they came in. Ultimately, defendant walked away from this scene and was discovered at a rear service door of the hospital. At that time his hospital gown was described as sweaty and with blood stains on the back. He was later taken into custody and charged with this offense.
In opening statement to the jury, defendant's counsel stated that the evidence would show that the crime of murder was not committed but that "The defendant, Mr. Smothers, further intends to prove that what action he took was justified * * *."
Defendant testified in his own behalf. In substance, he had left his hospital room because of an annoyance caused by other patients occupying the room one was in great pain and restless, and another, a negro, had been brought in in a strait-jacket and was calling people on the telephone and cussing. He had gone to the sun room and was reading or walking around.
He testified in substance that after the victim's party returned to the sun room and the victim had laid down on the couch, within a short time the latter told the defendant to sit down and then, "(A)nd he had set a paper afire and raised up and threw it at me and told me, `I told you to sit down',"; that the victim pulled a knife from his pocket and "Opened the knife and came at me".
"I said, `Fellow, what's the matter with you?' He did not answer. I turned to my left and picked up an ashtray. He came closer to me. I swung it at him and I hit his hand promptly in the middle of his arm and he dropped the knife. He reached down to pick it up. I hit him again with the ash tray, the side of the head and I also hit him again side of the head. The ash tray flew out of my hand. He fell against me. I pushed him away. He turned around and fell against my back. I pushed him away again. He walked to the back of the couch where he had been sitting. He stood there for a few seconds. He walked on up, started staggering, fell in the phone booth head first, turned around and walked about the middle of the room, he fell. He got up on one left knee he got up on his left knee as far as he could get, he fell over on his side and rolled over on his back. I picked the ash tray up that fell out of my hand, two nurses was standing at the door."
Defendant offered into evidence a pocket knife described as found in the following December in the dump ground to which the debris from the hospital fire had been removed. The evidence is that when found, the blade was open. The record shows that the search of debris extended over thirteen hours before the knife was found. Defendant also cross-examined the widow of the victim concerning the description of the latter's knife, which she testified could not be found after the homicide.
Thus far the record substance of the defendant's case has been self-defense. In considering the issue arising from the refusal of the instruction upon "sanity", we note that the record discloses extensive pre-trial discovery directed toward obtaining the military records, the hospital and medical records of the defendant. Defendant's counsel procured an order for psychiatric examination. The record further shows that counsel was furnished with reports of examinations by two psychiatrists, one of whom, Bauman, resided and practiced in a community removed from the excitement of the locale of the homicide. The psychiatrist, Uyeno, was called as a witness by the defendant. He reported that the defendant knew the difference between right and wrong, and was sane at the time of the offense. Uyeno's report included: that there was no thought disturbance; insight and judgment were not faulty and that defendant was well oriented but was a sociopathic personality, easily angered and with little ego control. Dr. Bauman's written report was that defendant was correctly oriented with average or above intelligence; that his psychological tests were normal with a slight but not significant tendency to hysteria. Bauman reported that defendant was not psychotic or schizophrenic, but found that defendant had some difficulty in maintaining emotional stability and that stress could cause anxiety and frustration. No pre-trial motion for competency hearing was filed.
Defendant urges that the issue of "sanity" was essentially presented in the State's case, and that such testimony makes the giving of the tendered instructions not only proper but mandatory. The instructions tendered and refused included defendant's ...