*1 FULCHER, Appellant Brian Robert
(Defendant), (Plaintiff). Wyoming, Appellee
STATE 5466.
No. Wyoming.
Supreme Court
Aug. 1981. Sept.
Rehearing Denied 1981. *2 ly- and his friend
Appellant were found alley the bar ing by police in behind a who officer noted abrasions their fists swore, Appellant faces. and his and friend uncooperative, They were and combative. public for subsequently were booked intoxi- disturbing peace. During cation and swear, booking appellant continued to and jumped by his were a said he and friend Although speech “bunch of Mexicans.” his slurred, verbally he was able to count was money, to incre- roughly $600 his in $500 Wheatland, appel- T. for Moxley, Robert $20, to his ments of and was able walk to lant. cell without assistance. Freudenthal, Gen., Atty. F. Ger- Steven was Appellant placed in cell with one Div., Stack, Gen., ald Deputy Atty. A. Crim. was lying Martin Hernandez who uncon- Johnson, Gen., Atty. Asst. Allen C. Senior on the of the cell. After the scious floor (ar- Atty. and R. Arp, Randal Asst. Gen. cell, jailer something that left the he heard gued), appellee. being like kicked. He ran sounded someone standing appellant the cell saw back to and ROSE, J., RAPER, Before C. and THOM- by jailer Hernandez. When started AS, BROWN, JJ. ROONEY resumed, again, kicking sound leave BROWN, Justice. kicking appellant stomping he observed Appellant Hernandez’s head. told guilty of on Appellant-defendant was found had fallen out of bed. aggravated dangerous officer Hernandez assault without was 6—4—506(a), bleeding profusely was 77 Hernandez weapon violation of § W.S.19 ,1 sitting hospital for some 52 stitches by the district court without taken to He had two or jury. appellant the is head and mouth. lost While characterizes his kicking. appeal differently, we teeth a result sues on believe three issues to be: day, later in the Appellant was released 1) necessary Is it for a defendant 18, 1979, He November and went home. plead “not guilty of mental Torrington on November went back deficiency” before evidence Appellant testified to see a doctor. presented? can be of unconsciousness diagnosed doctor hе had a concus- that the 2) Was there sufficient evidence to sus- sion, although is no in the evidence appellant’s
tain
conviction?
of medical treatment.
record
We will affirm.
court,
arraignment
ap-
in district
At his
plea
pellant first entered a
“not
17, 1979,
appellant
On
con-
November
Upon
mental illness.”
temporary
whiskey
seven or
over
eight
sumed
shots
judge
trial
being
advised
bar,
period
Torrington
of four hours in a
examina-
have to be committed for
would
a drink at home.
previously
and had
had
7-11-304, W.S.1977, he
pursuant
tion
in a
in the
Appellant
got
fight
claims he
and entered
withdrew
restroom,
bar
bar
then left the
to find
guilty.
According
the last
testimony,
friend.
to his
trial,
appellant
awakening
jail,
preparation
thing he
until
In
remembers
LeBegue,
a forensic
Dr. Breck
going out
the door at
bar.
examined
4—506(a),
than
thousand
1.
be fined not more
one
Section
W.S.1977:
shall
6 —
($1,000.00)
coun-
in the
dollars
confined
"(a)
If
mali-
shall
any person
unlawfully
jail
both.”
than one
year,
more
ty
inflict
another
ciously
upon
person,
grievous
offending
harm the
so
bodily
After the
po-
appeal
record on
had been
doctor reviewed
psychiatrist.
court,
filed in this
defense
a number of tests.
counsel and
report
lice
and conducted
prosecuting attorney
County
for Goshen
at
LeBegue
At the trial Dr.
testified
supplement
tempted
the record
enter
opinion appellant
expert
medical
suf-
stipulation.2
ing into a
We hold that
injury
fered brain
and was
a state of
*3
stipulation
improper attempt
sup
was an
automatism at
the time of his
traumatic
plement
record.
LeBegue
attack on Hernandez. Dr.
defined
Attorney
approve
The
General refused to
traumatic automatism as the state of mind
stipulation prior
to its
He
execution.
person
in which a
does not have conscious
may
bypassed,
not be
is in
once
case
actions,
and willful control over his
and
Attorney
this court
General has com-
ability
lacks the
to be aware of and to
plete charge of the
case.
State’s
Section
perceive his external environment. Dr. Le-
9-2-205(a),
county
The
and
W.S.1977.3
Begue
possi-
further
testified that another
prosecuting attorney
attorney
is
of
not the
symptom
ble
is an inability to remember
appeal.
record for the
in this
The
what occurred while in a state
traumatic
of
therefore,
stipulation,
will not be considered
automatism.
State,
also,
by
Hayes v.
this Court.
See
LeBegue
Dr.
positive-
was unable to state
Wyo.,
and did not because of his altered state mind. He of properly We hold that the trial court state, however, could not the character received and considered evidence of uncon of an act is devoid of intent be- plea criminal guilty by sciousness absent a of “not deficiency.”4 cause of mind alteration. of mental court, stipulation: brought 2. The substance of the shall all suits and defend against Court, parties the state official rela- officers their “COME NOW the in the trial defendant, tions, Fulcher, except brought by by against Robert Brian suits them through attorney, Moxley, required Robert T. the state. He shall be to attend to Wyoming by through suits, State of Goshen the interests of the in all actions state County Prosecuting Attorney, may Lowell H. or claims in be- which the state is or Fitch, following Stipulation and make the supreme come interested in either the court purpose clarifying Facts for the the record state, or in of the United States ” appeal; * * * (Emphasis added.) courts. “1. At the time of the commission of the 18, 1979, charged, crime on November 4.Formerly Wyoming under law a defendant suffering defendant was cussion; from a cerebral con- by guilty could enter a of “not W.S.1957, 7-240, insanity.” repealed Section “2. At the time of the commission of the 191, 2, Ch. S. L. of 1975. Under crime, the defеndant was in an altered men- present may law defendant enter a state, clinically tal defined as ‘traumatic au- guilty “not reason of mental or defi illness tomatism’, brought on and caused said 15, ciency.” Rule W.R.Cr.P. concussion; cerebral opinion insanity In this we will use the terms outstanding “3. That the clinical feature of deficiency interchange- and mental or illness said traumatic automatism is defined as ably having meaning. and as the same amnesia’; ‘traumatic require issues in this case do not that a distinc- suffering “4. That the defendant is nothing tion be made. It would add to the amnesia and does not remember the occu- opinion explain the difference the two rance [sic] crime.” fact, may, terms and obscure the issues in this case. The case law and that we treatises 9-2-505, 3. Section W.S.1977: term, generally “insanity.” will cite use the “(a) attorney general prosecute shall distinguishing The rationale for the defenses of defend all suits that be instituted insanity substantially unconsciousness against Wyoming, prosecu- the state of distinguishing the same as the rationale for tion and defense of which is not otherwise defenses of unconsciousness and mental illness law, provided represent and he shall deficiency. supreme the state in all criminal cases in the
145
Cal.App.2d
(1939);
perhaps
People
5. Unconsciousness
is not
defense
v. People,
complete
manslaugh
guilty
An
is
under all circumstances.
list
In Oklahoma
a motorist
incomplete
knowledge
In California,
will illustrate.
“uncon-
he
with
situations
ter if
drives
automobile
subject
intoxication
blackouts.
Carter
voluntary
sciousness
that he
produced by
frequent
(1962).
also,
does not render a
of com-
See
State, Okl.Cr.,
defendant
charge, affirma- insanity; it is an fense of 4.S01 ACTS UNCONSCIOUS defense; rests the burden tive without person commits act Where a this de- upon the defendant establish thereof, not being such act conscious fense, arises out of State’s unless it though, by a if committed criminal even evidence, satisfaction own conscious, be a it would was person who added.) (Emphasis jury.” crime. is that this rule The rationale only to cases law applies This rule of person who knows defendant person of sound the unconsciousness v. Bax- Hill state of consciousness. actual mind, functioning of is no which there Q. (1958), 1 B. 277. E. 193 1 All R. ter mind. the conscious Use Note- this case ruling on the facts of Our examples where this instruc- Specific of unconsciousness re is that defense sleep walkers apply include: tion would perma from with no sulting a concussion fe- suffering the delirium of persons damage is an affirmative de nent brain ver, head or epilepsy, a blow on the from the separate and is fense a defense intoxicating taking drugs or involuntary of mental defense liquor. deficiency. illness 348, (1975), 266, Mercer, S.E.2d 363 overruled N.C. 215
8. State v. 275 N.C. 165 S.E.2d Mercer, supra, that “it (1969), [uncon- and stated is never 335 held that “unconsciousness Caddell, is an affirmative defense.” sciousness] 287 an affirmative defense.” State 148 reasoning with re- spect to the defense of unconsciousness in
Comment- contrary legislative to clear will this case is 4.30. CALJIC judicially and has amended the statutes complete, par- is a Unconsciousness pertaining this state to mental tial, charge. People a criminal defense to excluding deficiency responsibility. criminal Wilson, Cal.Rptr. 156,] 59 Cal.2d [66 (Cal.1967). P.2d criminality no in the ab- There can I intention, and one who of criminal sence LeBegue’s testimony Dr. was inadmissi lacks criminal inten- unconscious acts while “ entirety. deficiency’ ‘Mental ble its Commonwealth, Ky.
tion. Fair v. [39 mental re means a defect attributable to Am.Rep. 213] tardation, damage learning disa statutory no or case law in Wyoming has 7-11-301, “A bilities.” Section W.S.1977. have been used to this area. Two theories person responsible is not for criminal con jurisdictions recog- support this defense in conduct, duct if at the time of the criminal nizing it. The first is that unconsciousness deficiency, as a result of mental illness or or semi-consciousness is a defense because capacity ap he lacked substantial either to one who acts while in such condition does wrongfulness preciate the of his conduct or requisite not have the mental state for com- requirements to conform his conduct to the second, mission of a crime. The which is 7-11-304(a), of law.” Section W.S.1977. Code, the rationale used the Model Penal appellant’s This (1962), defense. 2.01 and favored LaFave and Law, Scott, is that Criminal 11-304(c), provides Section W.S.1977 7 — requires voluntary commission of a crime that, “[ejvidence that a is not re omission, act or and one who acts while in a sponsible for criminal conduct state of unconsciousness or semi-conscious- mental illness or is not admissible engaged voluntary ness has not in a act. at the trial of the defendant unless a ei- The above instruction does not favor guilty by of ‘not reason of mental illness or ther of these theories because California’s ” * * * deficiency’ is made. No such defense, from which unconsciousness this was entered. taken, statutorily based. instruction is appellant apparently dispute does not involving When a case an unconsciousness arises, defense either rationale can be the fact that he did in fact commit adopted under the instruction as it is writ- charged. assault on his victim as While the *7 ten. appellant argued judge by way to the trial The second paragraph of the instruction brief written that the of uncon- availability limits the of the unconscious- sciousness was not deficiency mental as con- ness persons defense to of sound mind. W.S.1977, templated by seq., 7-11-301 et § People who commit similar acts but are of testimony the LeBegue of Dr. makes it unsound mind are suffering from mental condition, appellant’s clear that which he illness or deficiency by and are covered opines to have existed at the time of the laws and concerning instructions the insani- crime, injury. involved a head He testified ty defense. specifically: RAPER, Justice, specially concurring, my opinion “In he did suffer a brain ROONEY, with Justice, whom joins. injury, my opinion did suffer brain damage. He only
I concur suffered a concussion which in the result reached majority, except essentially to the (Emphasis extent I otherwise a brain bruise.” herein indicate.1 added.) early point,
1. respect At this improper supplementation it can be stated that I to the agree holdings with the court’s and discussion of the record.
149
by saying
testimony,
definition
“unconsciousness”
This, according to the doctor’s
as
“traumatic automatism”
“insanity,”
longer
translated into
but we
that
not
no
use
amnesia,
appellant’s
explained
well
as
pointed
term.
It must be
out that under
kicking and
remember
to
inability
his
adoption of the
the old statutes2 and before
victim,
Appellant
Hernandez.
stomping the
pertaining
deficien-
current
law
to mental
statute
effects of the
cannot avoid
cy
“insanity”
legislatively
was not
of traumatic
language
use
the clinical
of
majority
attempting to
defined. The
automatism.
gone by-by,
of an era
rather
adopt the law
believe,
incomplete
from the
prefer
I
legisla-
the authors of the new
than what
us,
court
that
the district
record before
mod-
a
informed and
tion
more
considered
LeBegue,
testimony
Dr.
of
disregarded
concept.
ern
under
it
inadmissible
statute
being
statute,
legislature
it
amends a
When
guilty.
not
is not
plea of
defendant’s
change in ex
presumed that some
must be
judge
a trial
in a court-tried
unusual for
should
isting law was intended and courts
to inadmissible evidence
case to listen
make such
effec
amendment
endeavor
defendant,
that
a criminal
but
presented by
County Weed
Albany
tive.
ex rel.
he
it in
does
mean that
must consider
pre-
County
v.
Com
disposition
the case. This court
District
Board of
of
and Pest
court with-
in a trial before the
sumes that
County Albany, Wyo., 592
missioners of
disregarded
inadmissible
jury
judge
out
(1979);
Wyo., 590
Brown v.
P.2d
judgment
his
was based
evidence and
(1979). It is
that
not reasonable
P.2d
Y, Wyo., 482
competent
evidence. X v.
declare
legislature would enact a law to
Am.Jur.2d,
(1971);
Trial
P.2d
already the law. DeHerrera
what
194; Anno.,
incompetent
p.
Reception of
Herrera,
(1977). The
Wyo.,
proper heading have “RE should been requirement upon of examination en- supplied by The title SPONSIBILITY.” try of plea purpose, such a serves a valuable legislature says nothing insanity.4 about explained what as in has been described as “deficiency” The term means “defect.” De leading subject, on the Jessner v. case fect means the want or absence of some Wis. N.W. thing necessary completeness, perfec A.L.R. 1005: adequacy tion or in form or Web function. shortcoming appellant’s
ster. It this in “The thus this upon assault made statute brought sweep mind that him within is highly important. Its enactment was 11-304(a), supra. only exception § response in to a well-settled conviction 7 — to mental not to be considered that, least, in cases at criminal where the 11—304(b): was that covered involved, society interests of were there 7 — section, “As used this the terms ‘men- should be some technical evidence from deficiency’ tal illness or do not include an unprejudiced and sources. reliable This abnormality repeated only by manifested grew conviction out of the belief that criminal or otherwise antisocial conduct.” existing procedure under the then striking tendency part was a damage causing follows to the brain experts opinions a defect to accommodate their bring its function would appellant within requiring the statute con- the necеssities of that side case e., formity provisions, upon with all testifying, its i. commit- were Chapter S.L.Wyo.1975: “(3) acquitted 4. When the defendant on the ground excluding defect of mental disease or through “AN ACT to create W.S. 7-242.1 responsibility, judgment 7-242.6; the verdict repeal through and to W.S. 7-239 shall relating so state.” capacity 7-242 to lack of as mental part cases; appears Subsection of this section bar examinations; trial or conviction criminal commitment; W.S.1977, 7-11-305(a), Cum.Supp.1981: reports; sepa- “(a) plea guilt couples ration of deficiency issues of and mental illness or When a defendant of not pleas guilty guilty guilty at trials where of not with a of not reason of guilty by proof deficiency, and deficiency mental shall illness plead; providing are both jury submitted before the same a continu- date.” effective ous trial on whether the defendant fact charged, on committed the acts ing the remain- 5. Section 4.03 of ALI Model Penal Code: alleged elements criminal offense “(1) excluding Mental disease or defect re- responsibility and on the issue of mental sponsibility is an affirmative defense. In the defendant. addition other forms “(2) Evidence of mental disease defect ex- jury, verdict submitted to the the court shall cluding responsibility is not admissible unless jury may submit a verdict which the find defendant, entering at the time of guilty by defendant reason mental days of not or within ten thereafter deficiency excluding responsibili- illness or ty." good at such later time as the Court *9 permit, cause files written of notice purpose rely on such defense.
151 These considerations lead to the conclu- very large opinions were to a that such appointment se- that their is most and unreliable. To sion prejudicial extent judicial unprejudiced opin- appropriate function. The stat- the reliable and cure cases, to experts of ablest in such ute cannot be condemned on this ions the justice of purest dеgree that the ground.” the end
judges sponsored the enactment might ward demned statute. quire retracement bring regret progress towards more the fact of their regulate the good public policy “By the statute under consideration criminal either side Legislature sponsoring be some evidence in ion has vails, unless it contravenes constitutional sion made known nesses who owe no provisions. We find no constitutional provision relating to prohibits judicial opinion. sfe paid received upon perfect steps be trials, as for, If this statute must promoted, [*] matters Legislature upon of of the has unconstitutional, subject in to all who believe justice. coming from expression, practice any to the deliberately judicial : n of most witness the attainment is no controversy, impartiality shall be duty of the board of circuit The dominant jury. end thus trials which jury expert evidence public policy pre- [*] case, longer procedure, that significant impartial wit- prescribed Whether the attempted to allegiance to the court *: not it will re- its there in and that be of this expres- subject bought matter steady opin- [*] of a con- for- the this state. This 352 U.S. head, if P.2d fendants will aid of a when of “not deficiency.” sciousness because deprived of this sciousness without notice society and need ment the definition of established not underlying psychoses blow, by the continuing ciety’s In the adequate impartial procedure for mental examination. if rights majority fact the defendant case temporary Spears, 76 true, psychiatrist and without commitment State the pretrial procedures That the before us and have been 77 S.Ct. P.2d and that has likewise been State have of opinion. appellant’s condition was should have entered claiming preliminary examination caused of brain the nature, Riggle, Wyo. statute, examination. appellant aggravated to establish the claims and will be of mental illness or defense of uncon- for treatment. So- defendant needed been and will be 76 unconsciousness opportunity damage, other cases of blows L.Ed.2d indicates the Wyo. automatism, cert. preliminary utilized the of there were upheld may have P.2d commit- usurped by the 63, on the All denied uncon- within pleas 366; 298 de- in Legislature. point good is a examination psychiatric “The function [*] administration [*] [*] these justice by experts [*] [*] is to furnish- aid [*] wash out the well. deficiency and phony claims mental identify legitimate illness opinions ing unprejudiced reliable and Ill subject. upon pur- a technical The whole mistaken taken the pose appointment their creation bump on the head promote accomplishment view that a little old We not know very serious. do purposes for courts estab- the head how much of a blow on accomplished indepen- lished. This is record damage was of, causing concussion and dently but under the di- within and court, X-rays were taken of, conformity by appellant. rection and in received nor appear in the record they did not practices For the court. testimony other than that they are was purposes particular of that trial to create unconsciousness. machinery enough part of the court. case, if true maybe not serious this While They to the court. render assistance *10 all, “In injuries at a concussion no matter with which severe head one the com- pel quires to so Gordy-Gray, point out ment of brain such a lightly more Attorneys’ myopic approach. comprehensive deal. The damage by Textbook of superficial attention to dis- blow on the The authors Medicine, treat- re- of the toxic of an brain plications [*] acute delirium or an acute syndrome,’ taking [*] type. may develop [*] [*] the form either is an ‘acute [*] psychosis [*] trifling: head “In the is disorien- state of delirium there 88.31, 80-20, ¶ p. pertinent part: tation, especially respect to time. “As a result of diffuse destruction of perceptions There are also disordered functioning nerve may cells there be leading to visual illusions and hallucina- what damage’ known as ‘brain quite tions. Visual hallucinations are general, non-specific, more or less effects drug psychoses, characteristic as com- functions, on intellectual behavior and pared with auditory hallucinations of personality. These superimposed be schizophrenic episode. the acute The de- on more neurological localized residual patient lirious is usually markedly hyper- deficits, may occur without neurologi- frequently active and restless and re-' cal disability of a localized kind.” quires some kind of restraint. 88.60, ¶ 88-53, p. pertinent part: patient may “In toxic states hyper- be complex general “The most effects of restless, active and disoriented and emo- trauma higher integrated involve the ac- unstable, tionally stuporous, apathetic (intellectual tivities of the capacity, brain and retarded. consciousness, memory, speech, behavior and personality). These are added to the
the American Psychiatric Association Manual, ¶ been dromes, ¶¶ 90.71(2) through 90.76 on “The sue.” fractured more ¶ vessels 90.71, 88.68(5), discussed elsewhere classification localized effects of ¶ 90.71(1) as acute or (hemorrhage pp. bone 88-71 and contused brain on acute brain through chronic, ‘brain and (See ruptured syndromes’ 88-72: hematoma), Chapter already blood syn- tis- sleep patterns, and intellectual activities These include disturbances of conscious- ly ness, ing “Other deficits and the brain are more nent ¶ 88.72, [*] demonstrable on disturbances of part: pp. higher integrative [*] 88-74 [*] through complex memory impairments [*] objective testing. 88-75, and less easi- functions of [*] function, involv- perti- [*] ft comprehension, such as knowledge, new chronic syndromes.) brain The acute concentrate, learning, ability to syndrome judgment brain is defined as one which is reversible, foresight.” while syn- in the chronic brain drome changes the brain are irreversible 88.73, ¶ pp. through 88-75 88-76: permanent. syndrome Chronic brain way approach “There is one due to trauma synonymous with trau- comprehensive disability evaluation of af- matic encephalopathy or the ‘brain-dam- [Emphasis ter trauma to the head. add- aged’ individual. changes, The brain ed.] definition, are encompass diffuse and all skull, brain, (the scalp, “Each structure aspects higher integrative activi- vessels) cranial nerves and blood must ties (orientation, of the brain memory, first be separately evaluated as to the intellectual comprehen- functions such as initial injury, degree recovery, local sion, knowledge, learning, judgment, alterations, possible residual either reactions). emotional and behavioral physiological, structural or which remain. In the acute syndrome there is im- pairment survey This kind of more or also, in all of less ‘local’ spheres these postulated it is that the includes condition also evaluation of the effects of recovery reversed so that place. any specific takes complication local which oc- *11 curred, special In degree recovery paper post-traumatic or a psyc- and the injury, which hoses related to head impairment appearing residual remains. Attorneys’ Medicine, 3B Textbook of Gor- higher integrated of the ac- phase “Each dy-Gray, relationship its to mental deficien- brain must then be evaluat- tivities of the cy legal as a proposition emphasized: any whether there is ed to determine 102.00, 102-1, ¶ p. pertinent part: impairment disability. or These residual psychosis gross “A a include: loss of contact higher activities reality. Psychosis is the medical consciousness, e., “(1) i. con- The state equivalent post- ‘insanity.’ of the word A coma, on, fusion, prolonged and so psychosis psychosis traumatic is a follow- functions, e., “(2) Memory i. or amnesias to, ing, injury. and ‘related’ recall, impaired retention and psychosis “A can be ‘related’ to a head “(3) Speech and related functions of or, matter, injury injury for that else- reading writing, body following where in one of the e., “(4) capacities, compre- Intellectual i. (1) ways: injury psychosis; caused the hension, knowledge, learning, new con- (2) injury precipitated psychosis out centration, judgment, foresight, (3) personality; injury of an unstable reactions, “(5) Behavioral (4) psychosis; made overt a latent “(6) changes, Personality injury aggravated pre-existing psychosis; “(7) responses, finally Emotional injury was not related to the whole, “(8) ‘psyche’ The state of the as a subsequent psychosis.” e., i. whole and his reactions to 102.20, 102-7, ¶ p. pertinent part: injuries. ‘psy- “In standard nomenclature the word [*] [*] [*] [*] [*] [*] ft chosis’ means matic psychosis ‘insanity.’ means an insanity caused Thus, a trau- However, precipitated by injury. it is ¶ 88.75(5), p. 88-86: place, simple. not that In the first impairments of “There be residual schizophrenia, that are psychoses, like (confusion, stupor, pro- consciousness up by (though rarely) lighted sometimes coma), longed sleep (hypersomnia, nar- still schizo- injury. In one sense this is (amnesias colepsy), memory and im- sense, phrenia; in another it is a but paired recall), retention and of intellectu- pre- psychosis traumatic it capacities (comprehension, al concentra- —because cipitated by trauma.” tion, knowledge, learning, judgment, new 102.50, ¶ p. 102-12: foresight), responses of behavior traumatic, specifically emotional reactions. “The two con- psychoses acute are delirium and the involving hippocampal “In lesions fabulatory (Korsakoff’s) syndrome. Con- portions temporal there is a lobes un- ready production fabulation is ina- memory past loss of for the life and explanations.” true statements and bility lay memory patterns, down new 102.51, learning impossible p. ¶ making new and seri- 102-12: ously impairing retention and recall of develops a true “Occasionally, patient recent events. injury. If following a head delirium (no alcohol or damage causes marked there is no toxic factor “Diffuse brain drug), this be considered changes personality. There is a with- other picture of delirium. The usual drawal a narrow world of little men- traumatic into restlessness, disorientation, activity tal and few social contacts. The delirium hallucinosis, visu- generally which is im- brain-damaged individual has severe al, pairment respond rap- occasionally auditory. Sometimes ability confusion patient exhibits a state of mild changes id fluctuations or in the environ- around, talking and ment, respond people, to ideas or in which he wanders was, score acting if he knew what the especially pressure under or stress.” This, inju- head proportion have ever had actually in a state of confusion. schizophrenic episode ry. too, delirium.” Sometimes is a form traumatic head immediately injury. follows after a 102.52, 102-13: pp. through ¶ 102-12 is a cause-and- assuming Before that this ques- patients answers to “Some invent relationship, is wise to effect consider glibness replies so that have a tions following: plausible, listen- would sound if the “(1) patient’s Whether confusion commo- er did not know facts. The *12 not have caused the indifference could patient would who example nest be the accident, versa. rather than vice that he else you tells was somewhere “(2) picture Whether the current clinical in the yesterday, actually when he was organic psychosis could not be a toxic or pattern hospital. This is traditional resembling schizophrenia. a syndrome’ may oc- ‘Korsakoff’s which high any type “(3) unfortunately cur in of traumatic delirium.” fre- Whether the not, both does quency of conditions inevi- 102.60, p. ¶ 102-13: bring injuries some tably, and schiz- some damage permanent can “Brain lead place time and ophrenias the same personality changes, sometimes while through sheer coincidence. damage triggers psychosis. brain a latent “(4) a Whether deterioration seems occurs, shows no When this the record actually schizophrenic gross not be could inju- psychotic prior to the overt reaction degeneration origin. brain of traumatic ry; injury and the either caused substan- “(5) in paranoid pa- Whether state a a damage, precipitated tial brain tissue a distorted tient does lead to emotional in which serious reaction misleading history.” self-image brooding impairment 102.72, 102-15, p. pertinent ¶ were factors. part: damage “Brain it harder to solve makes authorities believe that severe “Some problems. way patient injury precipitate may in which head manic-de- difficulty has not pressive meets that is based more on his attack. This been proved; but know that external personality own than the extent of the we do may onset factors account for the damage. might, example, He retreat psychotic episode. might engage into isolation. Or overactivity fury prove that he was “Any injury might be such a kind get right, away factor, all or to from considera- precipitating but to credit the in- would particular tions of his defect. The former be is jury for the attack not to schizoid, kind charge having latter a manic it with caused basic injuries irritability reaction. is another more head psychosis. Chronic Men have way of responding. manic-depressive common This irrita- but fewer attacks than factor, major bility applies patient injury to all women. If were a stimuli: alcohol, higher extraordinarily light, sensitive to men would show a incidence of noise, change posture, manic-depressive psychoses so on. Iras- than women. disinterest, memory overactivity, may injure de- cibility, apathy, Manics in their themselves; fects, possi- patients depressed and mental deterioration are injuries symptoms post-traumatic precipitate ble of chronic with suicidal intent. Thus, impairment. injury may brain Antisocial behavior the result of adults; sequel injury psychotic episode, a rare head the cause of it. psychoses is less rare in manic-depressive children.” Victims of unimpaired; usually retain intellects their 102.71, ¶ pp. through 102-14 102-15: is, they do not deteriorate intellectu- one “Since no knows what causes schizo- ally.” phrenia, categorically no one can assert 102.80, p. ¶ 102-17: any suggested impossible. cause However, 300,000 schizophrenics complete study in- psychiatric “A will personali- hospitals psychological American a minute tests —both today, clude age. ty Psychiatrists studies and measurements of intelli- have the tests, gence. Projection like the Ror- capability classifying those conditions (a personality schach test which measures prescribing treatment. subject), the emotional elements of the give profiles subjects characteristic IV gross damage. who have had brain Un- Many majority of the cases cited precisely in fortunately, it is such a case came from California. In that state there psychological that the additional evidence special covering is a statute the defense of will unnecessary, since there be clinical unconsciousness, amongst other classifica- gross damage evidence of the brain too. tions for which there be no criminal hands, however, experienced In these responsibility. cases California cited projection tests can often discriminate be- are valueless to a decision apathy gross or confusion due to tween in this case because the California law is damage symptoms and similar due Ann. statutorily based on West’s California *13 schizophrenia. to Penal 26: Code § patient personality study “If a had had a persons capable “All committing psychological injury, a test before the belonging to except crimes those the fol- injury and the test taken after lowing classes: deterioration, significant showed then the However, finding would be valuable. age under the of four- “One—Children persons any few will have on record such teen, proof absence of clear reports. made after the Studies accident committing at the time of the act ‘organic type’ profile. show an them, charged against they knew its profiles These indicate trends and tenden- wrongfulness. cies, accurately diagnostic and are not “Two—Idiots. laboratory the sense that a chemical test persons. “Three —Lunatics and insane Thus, might diagnostic. except be who committed the act “Four —Persons cases, psychological pro- rather severe charged under an or made the omission good supportive file cannot be used as fact, ignorance or mistake of which dis- evidence of the clinician’s conclusion. proves any intent. criminal used, contrary finding if clinical Even so who committed the act “Five —Persons given weight. will be more being conscious there- charged without diagnostic problem “The examiner’s falls of. stages: (1) patient into three does the committed the act “Six—Persons who so, psychosis? (2) have a if how is it to be charged through or made the omission relationship, any, labelled? and what if accident, ap- misfortune or when it prior injury?” does it have to the design, pears that there was no evil point of all this is that a blow to the intention, culpable negligence. causing head unconsciousness creates a (except women “Seven —Married and is to be treated as threats, felonies) acting under the com- deficiency. pretrial other mental A mand, of their husbands. or coercion expert examination an unbiased medical (unless “Eight the crime be indicated, procedure and that is the which —Persons death) who punishable with committed should have been followed in this case with charged omission the act or made the all of its ramifications. The or menaces sufficient under threats presuming greater expertise to act with they reasonable cause to show that had fact-finding proper a function not for this lives and did believe their would court. (Empha- endangered if refused.” injuries up Persons with head end with a added.) sis brain, just surely defective as those who except- special statute California also has a injury are born with one or who have brain from the defense drugs ing voluntary because of disease or or deterioration intoxication an act of which he perform omission Ann. California West’s unconsciousness. capable.[7] physically 22: Code Penal voluntary acts following are not “(2) The while in a person “No act committed meaning of this Section: within the is less intoxication voluntary state of convulsion; having been “(a) of his criminal a reflex or the actual But whenever such condition. during uncon- “(b) bodily movement mo- purpose, any particular existence sleep; sciousness tive, necessary element is a or intent result- “(c) during hypnosis or conduct or de- species any particular constitute suggestion; ing hypnotic into crime, may take jury gree of “(d) bodily movement that otherwise the accused fact consideration the effort or determi- product is not time, in determin- at was intoxicated actor, conscious or either nation of the motive, or intent ing purpose, habitual. he committed the act.” This is similar Wyoming’s § 6-1-116, [*] [*] [*] He He »He W.S.1977.6 em- language which adopted part suggested in the adopt
Wyoming did
the alternative
braced
2.01,
con-
supra:
which would
ALI Model Penal Code
comments
separate
defense:
automatism as
sider
a reflex or
must exclude
“Any definition
2.01.
The case of unconsciousness
Section
convulsion.
im-
when unconsciousness
equally
clear
of an offense
“(1)
A
is not
*14
coma,
it does
perhaps
as
plies collapse or
on conduct
liability
his
is based
unless
term. There
ordinary usage of the
voluntary act or the
includes a
which
respect
or defect.
Ill.Rev.
6-1-116,
to mental disease
W.S.1977:
6. Section
38,
1973,
It should also be
6-2.
§
Stat.
Ch.
for
shall not be an excuse
“Drunkenness
damage case
misdemeanor,
was not a brain
noted that
this
unless such drunken-
crime or
fraud,
of mental
had entered
contrivance
and the defendant
ness be occasioned
the
persons,
pretrial
person
for
some other
or
There were no
or force of
disease and defect.
perpetuation
purpose
causing
problems
the
procedural
the
involved or mentioned
offense,
[perpetration]
38,
in which case
1973,
opinion.
115-6
§
Ill.Rev.Stat.
Ch.
the
persons
causing
person
said drunk-
the
or
so
requires
will be relied
that such defense
notice
purpose,
malignant
shall be
enness
such
later,
Wyoming,
pointed out
did not
as
on.
principal
principals, and suffer
considered
or
this alternative.
elect
punishment
would have been
the same
as
trial,
Following
so that
a new
after remand
committing
persons
inflicted on the
or
insanity
jury
on both an
the
could be instructed
offense,
he, she,
if
or
had been
the
involuntary con
on the defense of
defense and
possessed
discretion.
of sound reason and
551,
Grant,
duct,
People
71 Ill.2d
17 Ill.
v.
intention,
inebriat-
rests in
Where
crime
814,
developed
it was
377 N.E.2d
Dec.
of the defendant at the time
ed condition
subject
epileptic
to
was an
the defendant
that
committing
proven to the
offense
psychomotor
grand
seizures and
mal and
both
jury,
bearing upon
question of inten-
as
testify,
expert,
only expert
to
defendant’s
tion.”
experi
opinion
was
that defendant
rendered an
Grant,
majority
People
cites
7. The
also
encing
psychomotor
at the time
seizure
696,
Ill.App.3d
8. See ALI Model Penal Code: 1-305(a), 7-1 was held unconstitutional by “(1) A for criminal is not responsible 567 State, this court. v. P.2d Wyo., Sanchez if as conduct at the time such conduct amended to 270 The section has been result of disease or defect he lacks 1, 3, Ch. delete the offensive Section parts. substantial either to the capacity appreciate trial was never 1978. The bifurcated S.L.Wyo. [wrongfulness] of his conduct criminality Penal of the Model Code. part conform to his conduct the requirements of law. 7-11-304(c), re 10. Compare W.S.1977, with § “(2) As ‘men- Article, used in this the terms quiring reason of men of “not by abnor- tal disease or defect’ do not include an the illness This serves im tal or deficiency.” manifested criminal mality only by repeated in notice the order function of portant antisocial conduct.” otherwise burden after assume its that 7-11-304(a), W.S.1977, infra. Compare furnishing ev qualified defendant’s evidence in idence rebuttal.
159
us, appellant
memory
In the case before
claims a
and consciousness was claimed as
damage
blow on the head caused
to the
due to shock when the victim of her crime
mind,
brain.
the brain houses the
Since
(murder) attempted a sexual assault.
In
there,
therefore,
is a claimed defect of the
Martin,
People
581,
v.
Cal.App.2d
87
197
appellant
mind.11 The
before us did not
(1948),
P.2d 379
the defendant did enter a
healthy
by
have a
mind as indicated
guilty by
of not
insanity
majority
alleged
attempted
but
claimed the unconsciousness was due to the
prove
possessed
damaged
one.
insanity.
The conviction was affirmed.
Having been chairman of the committee
People
723,
v. Taylor, Cal.App.2d
31
88 P.2d
W.P.J.I.Cr., I,
which drafted the
as well as
case;
is an alcohol intoxication
majority,
group
high
hold that
es-
the conviction
People
was affirmed.
In
v.
simply
teem. We
do not have a case before
815,
Conley,
Cal.Rptr.
64 Cal.2d
us to decide whether or not the instruction
(1966),
P.2d 911
by
majority,
cited
is valid.
Instruction 4.301 has no authorita-
jury
trial court did instruct
on uncon-
support
tive
nor
it purport
any
does
to cite
statute,
sciousness under the California
application
to the case now before the
the case was
grounds.
reversed on other
court
applies only
persons
that
as
required
Inasmuch
reversal was
and sim-
appellant
sound mind.
previously
retrial,
ilar issues would be raised on
that,
noted did not have a sound mind in
if
Supreme
pointed
Court of California
out
allegations
expert
were true and his
the defendant offered evidence of in-
testimony accepted,
functioning
he was
support
toxication to
his defense of uncon-
damaged
say
with a
brain.
I would
sciousness. The trial court
in its uncon-
paragraph
last
of the comment to the
sciousness instruction had made no refer-
pattern jury instruction excludes its use in
ence to intoxication. The court held: “An
the case before us:
distinguish
instruction that does not
uncon-
“The
paragraph
second
of the instruction
by voluntary
sciousness caused
intoxication
availability
limits the
of the unconscious-
from that induced
other causes is errone-
persons
ness defense to
of sound mind.
ous,”
pointing
the court
uncon-
out
People who commit similar acts but are
by voluntary
sciousness caused
intoxication
suffering
of unsound mind are
men-
falling
is not a defense
under California’s
tal
and are covered
governed by
unconsciousness statute but
concerning
the laws and instructions
separate legislation.
point
I
this out
(Emphasis added.)
defense.”
part
opinion.
another
of this
Now I
review the other cases cited
Methever,
People v.
132 Cal.
64 P.
majority. While I consider
California
(1901), (not
majority) is a
cited
cases of no
controlling
value because of the
statute,
murder case in which the defendant relied
it is observed that
the cases cited
insanity arising from head wounds
on both
do not include
head
during
due
injury
People
Hardy,
situations.
In
his life and lack of consciousness
“It is axiomatic in the criminal law
only society, represented by
544,
legal
'capacity
to commit a
also himself. 46 A.L.R.3d
4.
crime
is an essential condition of criminal re-
State, Okl.Cr.,
Carter v.
unimpaired; healthy,
injured,
leaving
statutory ap-
not diseased or
13. Before
the California
body
(Webster’s
proach,
robust—said of
or mind.”
I would also like to call attention to
**
*
Dict.,
2403.)
p.
Wilson,
People
Cal.Rptr.
New Internat.
If the
is,
66 Cal.2d
mind,”
defendant has a “sound
“a
161 just custody and had been released to the of them afterwards when he awakes. Most authors believe that his mother. State asserted he was somnambulistic disorder, i.e., attack psychogenic is a causing drunk when death of another psychogenieally determined like the neu- manslaughter a vehicular case. The trial Sleep-walking roses. is not the same as court excluded the evidence of his head the ‘automatism’ of patient in an injury and effect because no of insani- attack psychomotor of epilepsy.” ty had been entered. The Oklahoma Court of that of ing was admissible under a statute similar to crimes, except lowing classes: persons “All charged “6. Persons who committed the act Criminal [******] part: California, without Appeals those 21 O.S. being capable said that belonging conscious thereof.” 1951, 152, the evidence committing to the fol- read- Fain v. Commonwealth. 874 So does monwealth, “Complaint court while in this state was without self-con- trol, and committed acts of which he had that appellant was a appellant’s admitted on the trial submitted Kentucky that court said: 138 Ky. made insanity. Some evidence in a 558, 567, of case somnambulist, jury the fact that In Tibbs v. Com- tending subsequent 128 S.W. question to show 871, no recollection. We fail see how these before, explained As has no such any facts would constitute defense other statute for the reasons stated. than that embraced in a insanity. 485, People, Watkins v. 158 Colo. 408 P.2d Certainly appellant complain cannot 425 majority, cited fn. in- given that he was the benefit of such volved unconsciousness caused a blow on 14 defense.” the head. The defendant claimed traumatic majority In fn. 5 the cites Lewis v. being amnesia hit on the head 27 Ga. S.E.2d 659 blackjack with rendering incapable him defense in that case was that the defendant forming criminal intent. The court held apparently asleep claimed he was when got that since the defendant it in a fracas However, developed killed deceased. another, wherein he killed it was not a that the defendant’s excuse was that he fell murder, defense to degree first when the asleep drinking pint whiskey. after He precipitated defendant fight. I do not it, permitted get away was not with disagree with the holding question holding voluntary court intoxication was no pertinence of the case. excuse. The court’s comment interest- opinion The cites Fain v. Com- ing: “ * * * monwealth, Ky. Am.Rep. recognize We the rule of law that (1879), fn. 5. The case sleep-walk- concerns authorizes all reasonable deductions ing (somnambulism). question I would facts; find, proved but we think that under current knowledge advanced medical case, in this under the evidence an insane sleep-walking is not a mental deficien- defendant, mental condition of the known Medicine, cy, Attorneys’ 3A Textbook of sleep-walking or somnambulism would 83.53, ¶ pp. through 83-21 83-22: be to leave the realm of reasonable de- spec- duction and move out into a field “Sleep-walking or somnambulism is a conjecture sup- ulation and without complex (automatism)
form of behavior * * *’’ port any fact. concrete which occurs while an individual ‘asleep.’ He is unaware of his actions good point This be a at which to during the attack and majority’s does not discuss the reference to LaFave remember Kentucky by majori 14. A further in a case cited of unconsciousness vehicular homicide ty, Commonwealth, Ky., fn. is Smith v. to a willful indiffer- case because that amounts (1954). There, safety S.W.2d 937 and not the act of a the court reversed ence to the prudent of others case, properly because the trial court had not in not a concussion nor man. jury Kentucky any structed the on the fact that a is there statutory indication that blackouts, history Wyoming. cannot claim the defense such as controls *19 that, seem that the definition “It does not In their Hornbook Criminal and Scott. 337-341, they point 11—301(a)(iii), out pp. deficiency Law § of mental 7 — subject the of automatism that the cases on W.S.1977, damage,’ which includes ‘brain defense, in the The “are few in number.” trauma with no encompasses simple brain it, recognize is somewhat places few which It is our view aftereffects. permanent been and has not on the side of bizarre damage’ contemplated in the that the ‘brain jurisdic- many by the courts welcomed irreversible con serious and statute is some subject for the a fertile tions but has been impact upon ability the having an dition opined by the authors academia.15 contrary, function.” To the the to has less than excit- reception that its been condition is that the material successful, the ob- ing because if defendant the crime. How moment of exists at the outright acquittal an and need tains exist before it the condition long should undergo the risk of commitment even cloak of the statute —a comes within the LaFave though dangerous a individual. week, weeks, minute, hour, day, a a two it is for explain that this Scott month, The year, years, five a lifetime? part that courts for the most have taken insanity mental defect route as a the or nothing temporary says about statute has not policy matter of and the defense “serious and irrever condition or one that is popularly majority here been received. language of the statute is sible.” When permitted trapped itself to be into a has unambiguous, there is no room for clear and defense, legis- most which the controversial right and a court has no construction sought lature to avoid a careful defini- impose meaning. another look for tion of mental to include “brain Hayes Wyo., 599 P.2d damage.” (1979).
VI not know the full place, In we do the first damage. appellant’s extent of sup- whatsoever that There is no basis big leap when espouses majority takes ports proposition whereby responsibility concept, subject ap- involun- tial 15. An excellent discussion of the pears Physi- tary conse- Law Review treatment would be the in 63 Columbia medical automatism, Disorder, Consciousness, quence adjudicating Lia- or cal Criminal sane There, bility, by in-patient out-pa- it is Sanford J. Fox or insane. Whether to use explained why quick singularities the courts have not been facilities could turn on tient adopt promote case, the automatism defense. avoiding fallacy treating of each He concludes: peoplе. the other diseases instead of On attempts distinguish hand, apt comprehen- “It has been seen that to invoke here it is also automatism, ‘unconsciousness,’ pre-trial procedures de- sive that could avoid difficult, insanity fense defense are disadvantages parties to all of a criminal trial satisfactory yet and no solution has been permitting fructifica- while at the same time suggested. premise penal sanc- On promotes tion the medical treatment' applied only to those with an tions are to be all interests. choice, acknowledged capacity for it is obvi- event, any badly problem “In the whole ous that much the same rationale behind the consideration, legislative need of informed insanity applies persons whose defense strongly developments indicate for case law bodily impel them to cause criminal disorders planned legal properly deal- order for that a fact, pressed, to find harm. One is hard beyond problems ing with automatism separate automa- the considerations (Footnote capacity of court.” creative * ** from the defense. tism defense omitted.) problem. legislatively solved the ****** recognize legislatively automa It does for the “Whether there is rational basis recognize “brain dam It does tism defense. automatism defense at all constitutes deficiency. age” It does not com as a mental problem. Certainly most fundamental finding pel commitment as a result ques- is no clear historical basis for it. The posi deficiency and takes the unduly tion is difficult virtue of the black disposition will be taken as tion that such criminality, in- and white choices involved — provided by necessary the alternatives under sanity, apt acquittal. Perhaps here is an 7-11-306(a), (b), (c), (d), discussed infra. par- place applicability consider the position The defendant’s of an automatistic was that his un- say, “The commitment *20 tо a mental institution for reha- condition, individual injury, conscious caused brain absolutely no value. Mental bilitation has temporary injury and was an which hospitals generally people psychi- treat would heal. The statutes con- This form psychological problems. atric or template temporary mental defect or defi- of treatment is not suited to unconscious ciency. purposes required One of the of the bump on the resulting behavior pretrial commitment and is to examination pure conjecture, unsup- head.” That is the nature of determine the claimed defect ported by any authority whatsoever: deficiency period or and the covered injury simply “Brain is most evaluated alleged disability: length of unconsciousness. If less than “(c) reports pretrial Written of the exam- minutes, might post- consideration be ination filed with clerk shall be of poned venturing opin- before months report court. The shall include: date, ion about the future. After that “(i) findings findings; indicative of Detailed absence of de- rangement system, within the nervous “(ii) opinion An as to whether the ac- history may disregarded. such be deficiency, cused has a mental illness or longer “Unconsciousness than 15 minutes duration; probable and its major significance. high degree is A of “(iii) opinion An as to whether the ac- disability probable during of the first cused, as a result of mental illness or year with between 15 unconsciousness comprehend deficiency, capacity lacks During minutes and 6 hours. the second position, to understand the nature and mortality year, about 150% of normal him, object proceedings against anticipated to be in the future. There- manner, conduct his defense in a rational after, any symptoms in the absence of cooperate and to with his counsel to the permanent damage, may this factor any end be available defense disregarded. be interposed; hours, longer “Unconsciousness than 6 ' “(iv) at the opinion An as to whether hemorrhage operation history or present alleged even more serious futures. Eval- time of the criminal conduct the postponed year. uation should be one accused, or as a result of mental illness about 180% of mately next 2 years regarded. During after years, 150% the If there are injury second, and not until future experience third, mortality, approxi- this factor be dis- any longer symptoms 125% the indicates than 5 appreciate duct deficiency, requirements [*] to conform [*] lacked substantial wrongfulness law; [*] his conduct [*] [*] of his con- capacity [*] system derangement the nervous “(h) the ac- finding A the court meanwhile, they may expected to con- shall not mentally proceed fit to cused is future, indefinitely if tinue into the defense to the prejudice the accused present at the time of examination.” ground that at the charged crime on the Medicine, Gordy- Attorneys’ Textbook with a act he was affíicted time of the 180.33, ¶ Gray, p. 180-65. excluding re- deficiency mental illness or ”** * up It is to us to evaluate this individ- added.) (Emphasis sponsibility. injury. ual or other with a head That 7-11-303, W.S.1977. Section judge. is a matter for the trial We must condition, concept, temporary This same who realize individual defendant recognizing the appears legislation in the pleads deficiency mental interested 7-11-304(a), defense. W.S.1977: Section in mental at the time of the “(a) responsible for crimi- A is not offense, ap- commission of the as was the of the criminal nal conduct if at the time then, pellant acquitted here. He if for that conduct, mental illness as a result of reason, prepares challenge to meet the next capacity deficiency, lacked substantial of whether he will be committed. treatment, 7-11-306(c)17 supervision and wrongfulness appreciate either commitment, 7-11-306(d)18. an order of his conduct to or to conform his conduct protection provisions for of law.” Other requirements public are contained оne committed and ruling is on the this court’s Holding that 7-11-306(e) (h). through in § safety is not a valve of this case facts point majority has reached that insanity, previ because the under the The defense of approves the oth- analogy enlarged through an state and now ous law this ig- the court deficiency, of automatism. If er facets has been and *21 case, Comment, in it damage” interesting this nores “brain In an much abused. damage cases. Insanity for all brain Competency charted a course Trial and the to Stand Problems, Wyoming Defense in — Some L.Rev., Newman, Water Craig X Land & VII (1975), it is observed: 239-240 makes a loose statement majority “ * * * only 2 of 102 defend- Wyoming In law: “How- Wyoming in without basis guilty by reason pleaded ants who ever, finding guilty in the case of a of not insanity year period were found two is ordi- by insanity, the defendant reason the by hospital to be insane at the state a mental institution.” narily committed to two defendants time of the crime. These con- is then cited which LaFave and Scott tried; rather were trans- were not guilty by finding cludes that “a hospitals states. ferred to mental in other by commit- followed [is] tried; Only were one 74 of 102 finding than a mere of not ment rather * * acquitted by rea- of the defendants was (Brack- by *.” guilty followed release insanity.” son majority the supplied.) word Neither eted states the law as it is nor LaFave and Scott a new defense of The court has now added in this state. proportions which will be likewise ethereal subject of much abuse. by judgment
A of not deficiency does not mean an auto- mental VIII Wyoming to the matic commitment case, English an Hill v. Hospital. judge The trial has the alterna- cites Baxter, QB1 discharge custody, from 7-11- 1 All E.R. tives of 339-341, Scott, 44, pp. does 306(b)16, subject of release of to LaFave and an order supervision person pursu- 7-11-306(b), assume the of the 16. Section W.S.1977: of the court. Conditions “(b) person ant to the direction no If the court finds may longer by be modified of release such orders illness оr deficien- affected mental supervision may cy, longer presents from time to time and or that he no substan- danger by upon tial to himself or others and is If risk terminated order of the court. care, treatment, supervision hearing preponderance not in need of the state shows discharged court shall order him person on of the evidence that released custody.” supervision subsection can no under this by supervi- longer adequately be controlled 1-306(c), 17. Section 7-1 W.S.1977: sion, person the court order the commit- “(c) person If the court finds that is af- Wyoming hospital ted to the state or other deficiency fected mental illness or custody, designated facility for care and presents danger a substantial risk of to him- treatment.” others, self or but can be controlled ade- care, supervision quately given proper 1-306(d), 18.Section 7-1 W.S.1977: supervision, if on and treatment released “(d) person is af- If the court finds that subject court shall him released to such order supervisory appro- fected orders of the court as are danger priate presents justice himself substantial risk of in the interests of and the wel- subject may ap- proper fare of the defendant. The court or others and that he is not state, point any person county supervision, or local the court shall for release or agency capable which the court considers state order him committed to the supervising person upon Upon facility release. designated hospital for custo- or other receipt of an issued under this subsec- order dy, care and treatment.” tion, agency appointed shall reviewing tragic accept job equanimity an with a state excellent application rule of automatism criminal law it in which is more than ju- reflecting dangers, country its possible, proper, to set free someone concept a whole new diciаl aftermath and who showing likely own to be dealing with it as a mental apparently now suffering from a condition which deficiency: make him irrational and repeat savage Britain, experience “The where attack on a welfare child with whose he is with defense has been raised automatism ap- entrusted law.’ A similar concern greater frequency, much instructive. pears judge influenced the have worthy There are three cases Kemp, charged was where the defendant Regina of brief here: Charlson note [1 bodily harm his causing grievous (1955)]; Regina Kemp All E.R. 859 [3 by striking wife her with a hammer. Bratty (1956)]; All v. Attor- E.R. 249 agreed Kemp suffering was ney-General All for Northern Ireland [3 and had not from arteriosclerosis known (1961)]. E.R. 535 doing time. what he was at One “Charlson, ten-year-old who struck his doctor, gave prosecution, called *22 son then out with a mallet and threw him opinion his that this was due to melancho- window, (1) charged was lia, a disease of the mind induced causing grievous bodily harm with intent doctors, arteriosclerosis. Two other one murder; (2) causing grievous bodily one called the defense and harm; harm with intent to cause such prosecution, testified that defendant’s bodily (a grievous and harm causing condition did not constitute disease of offense). There evi- strict-liability was the mind. dence had a cerebral tu- that Charlson position “Although Kemp’s that he it was mor, of which he would be sub- because acquittal outright was on the entitled ject impulsive outbursts violence Charlson, court basis of the trial instruct- over have no He which he would control. only ground insanity ed on on the insanity, testimony was plead did M’Naght- the facts case fit within of the suffering offered that he was not from accepted en the evidence of whether one any acquit- disease. Charlson was prosecution defense: ‘The harden- charges by ted of jury all three ing of the arteries is a disease which is part had instructed in as follows: been capable “ shown on evidence to be specific proved ‘No intention need affecting way the mind in such as to prosecution before the can be accused defect, temporarily permanent- * * cause a charge found the third *. ly, reasoning understanding, of its must, however, You he be satisfied that * * of the mind within and is thus a disease Therefore, *. acting consciously was Most meaning signifi- of the rule.’ considering charge you third have this cant, apparent it that this court made to ask “was the know- yourself accused any upon conclusion not based medi- was son, ingly striking acting his or was he as term ‘mental disease cal definition of the any an without control or automaton policy upon the ‘that or defect’ but rather which he com- knowledge of the act was * * * violence, who crimes of people committed mitting?” you If are left in doubt responsible though they even were matter, you might about think actions, ought not to be allowed for their acting well an have been automaton go they might commit an free because knowledge real of what he any without again.’ act of violence proper was would doing, then the verdict Charlson, be not guilty, even on the third and least Kemp, was at “In unlike serious of these alternatives.’ testimony of mental expert least some disease, agreed that generally uniformly “The but it commentators have ex- on pressed the two not be reconciled the result cases concern over in Charl- noted, it, example, put son. writer ‘it this basis. It was As one is difficult mind. At rate it is the sort of dis- organic interfer- cases ‘involved that both brain,’ it ‘is diffi- and that which a should be de- with the ease for ence why given arteriosclerosis hospital tained in rather than be an to understand cult “rea- powers affect the acquittal.’ Denning, Lord unqualified can be said on,” understanding, and so when therefore, soning, quite frankly acknowledged Kemp cannot.’ was tumor a cerebral protective custody of the need for ‘meeting what has way as a viewed major is a consideration in the defendant law,’ as a defect in the accepted been determining whether defendant outright namely, an avenue of release for insanity-dis- an automatism-disease or an dangerous defendants. ease. the House “The matter reached of Lords Kemp Bratty “While have received a case, Bratty appeal in the from a ground sympathetic reception on in a murder case in which both conviction to avoid the result reached is desirable insanity were raised as automatism Charlson, questioned it has been evidence on both de- defenses. broadening whether ‘the definition Bratty’s testimony that he fenses was phrase the mind” “disease of feeling ‘had some terrible and then a sort the ill it is not be a cure worse than killing, and ex- of blackness’ before remedy.’ By this extension intended to suffering that he pert testimony insanity defense into an area which epilepsy at the psychomotor time he might occupied by otherwise be the de- strangled judge victim. The trial re- automatism, experts medical fense automatism, fused to instruct and the making position ‘forced into the state- rejected jury. defense was not make in ments in court would *23 upheld The House of Lords the convic- clinic,’ while a defendant who ‘has the tion, explaining that the defendant’s own unconsciously physical or acted due to a testimony provided had not a basis for an organic disorder faced with a verdict [is] automatism instruction because there was committal’ to an institu- of support no medical evidence to the claim only tion intended for the treatment blackout, psy- and that the evidence of suggested mental illness. It has been epilepsy provide chomotor did not a basis preferable provision that it would be if ‘agreed because the doctors who tеstified whereby interposed were made one who * * * psychomotor epilepsy is a de- successful automatism defense be could fect of reason due to disease of the mind.’ conditionally discharged detained Kilmuir, As stated Lord ‘where the receiving surgical purpose the of his the alleged cause for the unconscious- might medical which be nec- treatment ness is a defect of reason from disease of essary prevent to a recurrence of the mind, the rejected by and that cause is (Footnotes omitted unconsciousness.” jury, the there can be no room for the added.) and bracketed citations alternative defense of automatism.’ to the sentence of the respect With last Denning’s opinion Bratty “Lord has treating damage quote, as a mental more received attention. He noted that deficiency, agree. gives the I Such court question of whether the evidence con- authority to commit or re- cerning the cause of the defective con- required to the circumstances lease as meet sciousness establishes a disease of the of each case. policy mind is a matter to be decided majority opinion I has the courts rather than conclude that the medical ex- whatsoever; perts. no authoritative basis not a policy, As to the he stated: ‘It supports seems to their single me that mental case or reference cited disorder position. which has have affirmed the district manifested itself violence I would court19, prone and is to would not have recur is disease of the created the agree 19. I that the evidence does not establish appellant that the was unconscious and that his feigned. defense was unconsciousness, upon testifying, at least as were
new defense (brain damage) opinions very large such were to a automatism to traumatic prеjudicial extent and unreliable. To se- clearly included as mental 11-301(a)(iii), supra. unprejudiced opin- There is no need cure reliable and § 7 — experts cases, go beyond point. I can the ablest in such for the court ions of s safely predict purest degree justice will disre the end that the defendant gard guilty by might promoted, of “not the board of circuit deficiency” claim un judges sponsored the enactment of this many mental diseases and If this consciousness statute. statute must be con- unconstitutional, symptom. deficiencies which include that it will re- demned quire significant retracement most for- Justice, ROONEY, concurring. specially steps judicial procedure, ward steady all bring regret who believe (in specially concurring opinion In his progress towards the attainment out join), Raper pointed which I Justice justice.” perfect more inappropriate application to this matter in their every case cited Among indi- opinion. things, other he has (1) majority opinion failure
cated recognize plain used words (2) to those
legislature, distinguish between “insanity,” potential
words and public
injury to both the defendant and the which will arise to afford from failure DISTAD, Ralph Administrator of the L. offering court-ordered examination of those Mary Poulin, Deceased, J. Estate of an “unconscious” defense under (Plaintiff), Appellant guilty. concurrence, separate In this I special CUBIN, D., and Memorial Frederick W. M. emphasize dangerous want result of Casper, County, Hospital of Natrona majority opinion: probable inclusion Appellees (Defendants). Wyoming, al- of the defense of “unconsciousness” on *24 every plea guilty.” most I believe “not No. 5414. regressing to reflected we are the situation Supreme Wyoming. Court of quotation Raper’s in the set in Justice forth opinion from Jessner v. 202 Wis. Sept. 1981. con- 231 N.W. A.L.R. 1005 cerning the situation which existed before
mandatory court examinations ordered required of who their
were those based responsibility:
defense on absence mental thus upon
“The assault made this statute highly important. was Its enactment response to well-settled conviction
that, least, in criminal at where the cases involved, society
interests of were there
should be some evidence from technical
unprejudiced and sources. This reliable grew out of the belief
conviction then existing procedure
under the striking part tendency on the opinions to
experts to accommodate their the case
the necessities that side of