This is an appeal from a judgment of the Common Pleas Court of Franklin County finding the defendant, appellant herein, guilty on two counts of murder in the first degree without recommendation of mercy. The death penalty is mandatory. *Page 228
The first assignment of error concerns the failure of the court to conduct an inquiry into the appellant's present sanity,i. e., capacity to stand trial. Section 2945.37, Revised Code, as pertinent here, provides:
"If the attorney for a person accused of crime whose cause is pending in the Court of Common Pleas, before or after trial suggests to the court that such person is not then sane, and a certificate of a reputable physician to that effect is presented to the court, or if the grand jury represents to the court that any such person is not then sane or if it otherwise comes to the notice of the court that such person is not then sane, the court shall proceed to examine into the question of the sanity or insanity of said person, or in its discretion may impanel a jury for such purpose. * * *"
Appellant was arraigned and entered his pleas on July 16, 1965. On the same day the court by entry committed him to Lima State Hospital for observation. The entry recites that "it was suggested to the court that the defendant is not now sane," and states that the commitment was made pursuant to the provisions of Section 2945.37, Revised Code. There is nothing of record to indicate either the basis or the source of the suggestion.
In a letter dated August 20, 1965, and filed September 7, 1965, the hospital superintendent stated that appellant had been examined and "in our opinion he understands the nature of the charges to be brought against him and can counsel in his own defense." No hearing was held nor was any other action taken.
Over five months later, on February 18, 1966, appellant's counsel filed a motion for inquiry pursuant to the statute. A certificate of a physician was filed February 21, 1966. The certificate was signed by a psychiatrist who stated that he had examined appellant and that appellant was presently suffering from a deep, chronic psychosis. The doctor further certified that appellant could not "comprehend the ways in which our society operates" and that "his approach to life is consistently mistaken, meaningless, and totally unsuccessful."
On March 7, 1966, the court signed an entry reciting that "defendant hereby withdraws his request for a sanity hearing." The entry was signed by both appellant and his counsel. *Page 229
At no time before trial did the court "proceed to examine into the question of the sanity or insanity of said person," nor did the court "impanel a jury for such purpose."
We find the first assignment well taken. The court erred in failing to proceed in accordance with the provisions of Section2945.37, Revised Code. That statute makes an inquiry mandatory whenever the court is confronted with a statement of defense counsel and a certificate of a reputable physician. See Evans v.State (1930), 123 Ohio St. 132, and State v. Smith (1931),123 Ohio St. 237. With respect to the constitutional obligation of a court to determine the capacity of an accused to stand trial, see Pate, Warden, v. Robinson (1966), 383 U.S. 375,15 L. Ed. 2d 815, 86 S. Ct. 836.
The statutory prerequisites having been met in this case, the trial court was required to proceed under the statute. The fact that the court had previously received a contrary statement from Lima merely illustrates the need for an inquiry and determination.
Appellee contends that the request was withdrawn. The statute does not talk in terms of motions or requests, but rather of notice. A determination of present sanity or capacity of the accused to stand trial is not a matter within the discretion of either the counsel or the court. A duty to hold an inquiry arises when reasonable grounds to believe have been brought to the attention of the court. There is no way for someone to withdraw information from the attention of the court once it has been conveyed. Further, if a man lacks capacity to stand trial, he also lacks capacity to "withdraw" a motion, or waive a jury trial, or otherwise act in the conduct of the case. State v.Smith (1931), 123 Ohio St. 237, at 244.
Appellee also contends that the issue of present insanity was determined at the conclusion of the trial upon the basis of the evidence produced during the trial. The Supreme Court decisions make it apparent that the inquiry pursuant to the statute is mandatory and not discretionary. However, appellee also contends that even though it was error not to proceed with the inquiry there was no prejudice in doing so. Appellee's contention presupposes that the jury waiver was effective. It also ignores the right of the Legislature to require a particular procedure. *Page 230 In our opinion, the trial court cannot ignore the statutory requirements and substitute its own approach to the problem for that prescribed by the Legislature.
The second assignment of error relates to the overruling of a pre-trial motion to suppress, and to the admission of evidence obtained as a result of an alleged unreasonable search and seizure.
Appellant shot and killed John Lyman about 1 p. m. on May 10, 1965. Within an hour, he was identified as the assailant. His residence was then "staked out" by police. The surveillance of the home continued for some 20 hours. There was nothing to indicate that anyone was present, and the neighbors thought no one was home. At approximately 9 a. m. on May 11, 1965, the police entered the house. No search warrant had been requested or issued. A police officer testified that the police had been unable to locate appellant's wife, Virginia, and that "it then became an opinion of mine that there was probable cause to believe a felony had been committed in this residence." After entry, the premises were searched and the body of Virginia Jemison was discovered upstairs, the victim of a homicide by gunshot.
A search without a warrant is illegal unless incident to valid arrest, or under circumstances amounting to exigency. There was no arrest involved, and there obviously was no emergency which would excuse the lack of a warrant. Compare Morrison v.United States (1958), 262 F.2d 449, and People v. Albea (1954),2 Ill. 2d 317, 118 N.E.2d 277.
The trial court erred in not sustaining the motion to suppress. All evidence obtained as a result of the illegal search, including testimony which is the "fruit" of that illegal entry, must be excluded.
The judgment of the Common Pleas Court will be reversed and the cause remanded for new trial.
Judgment reversed
DUFFY, J., concurs.