Appeal, No. 192, Jan. T., 1955, from order of Court of Oyer and Terminer of Warren County, Feb. T., 1954, No. 1, in case of Commonwealth of Pennsylvania v. Norman W. Moon. Order reversed.
Thomas A. Waggoner, Jr., with him Edward Dumbauld, and E. H. Beshlin, for appellant.
Frank P. Lawley, Jr., Deputy Attorney General, with him David S. Kohn, Special Prosecutor and Harrington Adams, Deputy Attorney General, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
The pivotal and important question presented by this appeal is whether The Mental Health Act of 1951 changed the common law test for staying criminal proceedings after verdict but prior to sentence or execution. Inasmuch as appellant's motion for a new trial has not been argued and sentence has not been pronounced we are not concerned with possible trial errors or the merits of appellant's conviction.
On January 13, 1954 the appellant, Norman W. Moon, appearing before the Court of Quarter Sessions of Warren County on a charge of failure to comply with a support order, shot and fatally wounded the Honorable ALLISON D. WADE, President Judge of the 37th Judicial District. After apprehension, appellant was indicted, tried and on May 25, 1954 convicted of murder in the first degree. The jury, rejecting appellant's sole defense of insanity, fixed the penalty at death. About two months thereafter, on July 31, 1954, while appellant was confined in the Warren County Jail pending disposition of his motion for new trial, the county sheriff, in his capacity as keeper of the jail, petitioned the court for the appointment of a sanity commission under Section 344 of The Mental Health Act of June 12, 1951, P.L. 533, as amended, 50 PS § 1224. This section of the Act provides, inter alia, that a petition for the commitment of any person detained in any penal or correctional institution who is thought to be mentally ill or in such condition that he requires care in a mental hospital, or who is thought to be a mental defective (except mental defectives convicted of first degree murder) may be made by counsel for the prisoner or the superintendent of the institution where defendant is detained or by any responsible person.
Without holding a hearing on the petition, the court by an order dated July 31, 1954, appointed a commission composed of two physicians and an attorney to investigate appellant's mental condition. After examining the defendant and holding hearings at which testimony and statements were taken, the commission on October 13, 1954 filed its report with the court in which it found the following ultimate facts: "a. Norman W. Moon is in fact mentally ill. B. Norman W. Moon's mental illness is that of dementia praecox of the paranoid type. c. This illness is chronic and continuing. d. Norman W. Moon is a proper subject for commitment to a mental hospital.".
The findings also contained answers to three specific questions submitted by the court on October 8, 1954, namely,
"(1) Regardless of what Moon's ideas or his feelings may be as to his own acts or behavior and although he may have a mental abnormality or illness, has he sufficient intelligence or mental ability to comprehend that by generally accepted standards an unjustifiable and inexcusable killing is considered to be wrong and a crime? "Answer. Yes, except during the two periods of acute mental disturbance that he has exhibited.
"(2) Regardless of what Moon's ideas or his feelings may be as to his own acts or behavior and although he may have a mental abnormality or illness, has he sufficient intelligence or mental ability to comprehend that he has been tried by a jury which found him legally responsible for such a killing and guilty of murder in the first degree, and the jury also set death as the penalty which it felt was the proper one in his case?
"Answer. Yes, except during the two periods of acute mental disturbance that he has exhibited.
"(3) Regardless of what Moon's ideas or his feelings may be as to his own acts or behavior and although he may have a mental abnormality or illness, has he sufficient intelligence or mental ability to comprehend that if the penalty set by the jury is carried out and he is sent to the electric chair, it will be in punishment for the crime of which the jury found him guilty?
"Answer. Yes, except during the two periods of acute mental disturbance that he has exhibited."*fn1
After reviewing the evidence taken before the sanity commission and its report and, as well, the evidence adduced at the trial, the court below on October 21, 1954 filed an opinion and order finding appellant legally sane and ordering the proceedings to continue. Exceptions filed to this order by appellant were subsequently dismissed by an opinion and order dated February 9, 1955. This appeal followed. As The Mental Health Act of 1951 neither provides for nor prohibits an appeal to this Court where commitment is denied, review by certiorari may be had in the broadest sense and we may examine the record to determine whether the court's finding amounted to an error of law or an abuse of discretion as appellant contends: Commonwealth v. Patskin, 375 Pa. 368, 375, 100 A.2d 472.
Prior to any legislation on the subject, Pennsylvania and the vast majority of other jurisdictions consistently followed and applied the common law principle that no insane person could be tried, sentenced or executed: Commonwealth ex rel. Smith v. Ashe,
or of stating any reasons that may exist why sentence should not be pronounced, sentence should be stayed and the defendant, committed as an insane person until he recovers.".
It is apparent from the three questions which the court submitted to the commission and the opinions accompanying its orders that it was of opinion that the common law test for determining mental capacity at this stage of the proceedings had not been altered by the Act of 1951. If this conclusion were sound, we would not hesitate in subscribing fully to the court's findings and order. The commission found as a fact that appellant "... knew why he was in jail ..., knew that he faced a sentence in accordance with the jury verdict ..., knows that he is on trial for his life ..., recalls his trial ..., admits that no one is justified in taking anyone else's life ..., knows that it is not right to shoot anybody ..., and what the consequences of his acts might be ...". The commission examined the appellant at some length as to his ability to cooperate with his attorneys, but made no specific finding in this regard. Appellant's attorneys made statements before the commission that appellant was unable to adequately cooperate with them, but the court, stating that "The defendant's own words and thoughts, as expressed by him in his own testimony before the Sanity Commission refute these opinions.", found that "... the defendant, understands the nature of the proceedings against him, comprehends his position in relation thereto, and is able to cooperate with his attorneys, ...". We have read all of defendants testimony, not only before the sanity commission but at his trial, and are satisfied that, under the law as it existed prior to any legislation on the subject, the court below committed no error of law nor any abuse of discretion. However, the question presents itself whether the common
law test has been superseded in Pennsylvania by
The history of legislation dealing with the custody of persons charged with and acquitted or convicted of crime who become mentally ill begins with the Act of crime who become mentally ill begins with the Act of May 14, 1874, P.L. 160, but for purposes of this case we are particularly concerned with the present Mental Health Act of 1951 and its predecessor, the Act of July 11, 1923, P.L. 998. Section 308 of the Act of 1923 provided: "When any person detained in any prison, whether waiting trial or undergoing sentence ... shall, in the opinion of the ... warden, ... be insane, or in such condition as to make it necessary that he be cared for in a hospital for mental diseases, the said ... warden, ... shall immediately make application, ... to a law judge of the court having jurisdiction of the charge against said person, or under whose order he is detained, for commitment of said person to a proper hospital for mental diseases. The said judge shall forthwith order an inquiry ... by a commission ... who shall immediately examine the said person and make written report of their findings to the said judge ... The said judge may, in his discretion, summon other witnesses and secure further evidence. If he is then satisfied that the person thought or alleged to be insane is in fact insane, he shall order the removal of such person to a hospital for mental diseases ...". (Emphasis supplied). We construed the language "any person detained in any prison, whether waiting trial or undergoing sentence" as including a person sentenced to death, since a part of his sentence is that he be imprisoned until his execution: Commonwealth ex rel. Smith v. Ashe, Warden et al., supra, p. 117. To this extent the 1923 Act adopted the common law rules relative to a stay of execution for a defendant who became insane subsequent to verdict.
The Mental Health Act of June 12, 1951, P.L. 533, as amended, 50 PS §§ 1071-1622, was the first general revision and comprehensive codification of the Mental Health Laws since the Act of 1923. Under Section 343 of this Act the trial court is empowered to defer sentence and order a mental examination of any person convicted of a crime punishable by sentence to a penal or correctional institution. While this section would appear to restrict the application of the Act solely to persons convicted of crimes punishable by sentence to a penal institution, as previously indicated, Section 344 covers persons detained in any penal institution and it impliedly includes persons convicted of first degree murder who are mentally ill by expressly excluding in that classification only mental defectives: Cf. Commonwealth ex rel. Smith v. Ashe, Warden et al., supra. Section 345 of the Act provides that after receipt of the application for commitment and notice to the prisoner's counsel and an examination of the person sought to be committed by a commission, "(d) If the court is satisfied that the person sought to be committed is mentally ill or mentally defective, it shall order the commitment or transfer of such person to a mental hospital or an institution for mental defectives ...". (Emphasis supplied)
It will be readily observed that the basic dissimilarity between Section 345 of the Act of 1951 and Section 308 of the Act of 1923 is the substitution of the words "mentally ill or mentally defective" in the later enactment for the term "insane" in the earlier Act. This difference in terminology is employed with substantial uniformity throughout the 1951 Act. On the ground that this change of language in the 1951 legislation signifies a change of meaning by ...