Appellant was convicted and sentenced to imprisonment for life for murder in the first degree of Mrs. Orlean McCord.
The victim, an elderly lady, was living alone at Goodwater. On September 1, 1974, she was expected .for a noon meal at the home of her son and family, who also lived in Goodwater. Upon her failure to arrive for the meal by about 12:30 P.M., her son and wife became concerned and telephoned a young man to meet them at the victim’s home, where they promptly went, accompanied by one of their neighbors. The front and back door of the victim’s residence were locked. Neighbors of the victim, becoming alerted to the situation, werе on hand. The young man who had been called arrived, obtained a step ladder from a neighbor of the victim and entered the house through the only open window therein. There was a screen missing from the window. He unlocked the doors, through which the concerned friends of the victim, and afterwards law enforcement officers, entered. According to their testimony, Mrs. McCord was then a cold corpse, lying on the floor near her bed. She was dressеd in pajamas upon which were blood smears across the shoulder, back and bottom. Blood stains were on the pillows of the bed. A vase in the room had been broken, and pieces of it were found on the floor and on the bed.
The body was taken by ambulance to Auburn, where it was examined by a toxi *107 cologist of the State of Alabama, found bruises and contusions, the left sixth rib fractured, two fractures of bones in the neck area and hematoma of the sub-scalp area. He concluded that her death was the result of manual strangulation. He
The screen that was missing from the window through which the entry was made into the house was found under the house of Charles Smith, a life-time acquaintance of appellant. Finger prints were obtained from the frame of the screen by a criminologist employed by the Department of Toxicology and Criminal Investigation, who compared them with finger рrints of appellant. He testified there were matching characteristics. He said, “In my opinion both prints were made by the same finger.”
Charles Smith, whose home is located about a hundred yards from that of Mrs. McCord, testified as а witness for the State. He said appellant stayed at his home from sometime on the afternoon of August 31, 1974, until about 3:30 A.M. on the morning of September 1. During that time they had looked at television. He said that appellant was away from the house from about 3:30 A.M. until about 4:30 A.M. Upon his return appellant told the witness that he was going to sleep outside in the car. The witness said he saw appellant again about 10:00 A.M. that morning. He said appellant was wearing а red shirt, “a black pair of pants and black shoes,” that he was with the witness from the afternoon of August 31, 1974, until about 3:30 A.M. the following morning, but that he had changed clothes when he was seen at 10:00 A.M. that morning, at which time he had on a “blue and white shirt, а blue pair of pants and a black pair of shoes.” The witness said he did not put under his house the screen that was found thereunder and that he had never seen it prior to September 1, 1974.
Three witnesses for the State testified as to conversations with appellant in the Coosa County Jail in March, 1975. One said appellant told him that he had gone to Mrs. McCord’s home to “rip her off,” that there was someone else with him, but that he did not tell this to his lawyer. Another said that appellant stated that he killed Mrs. McCord and “busted her across the head with a jar.” The third witness as to a conversation with appellant said that he stated that “he killed Mrs. McCord along with another fellow named Chаrles.”
Appellant did not take the stand.
There were two pleas in the case, not guilty and not guilty by reason of insanity.
We have no difficulty in concluding, and no insistence is made to the contrary, that there was ample evidence to support the verdict of the jury as to the issue raised by the plea of not guilty.
As to the issue raised by the plea of not guilty by reason of insanity, we hereinafter summarize testimony not narrated above.
Expert testimony on the subject of insanity was largely in favor of defendant, but there was some conflict. In October following the death of Mrs. McCord, upon joint motion of the State and defendant for an investigation as to the sanity of defendant, he was sent to the Superintendent of thе Alabama State Hospitals and there he was examined and considered by two psychologists, a licensed physician with training in psychiatry and two psychiatrists. All but one of the psychiatrists, agreed substantially in the determination that defendant was moderately mentally retarded, that according to the Binet Test he had a mental age of approximately six years, that according to the Leitner International Test he had approximately the same mental age and that according to the Ammons Picture Vocabulary Test, (considered as a less valid test, because “it tests pretty much rote memory”) he had a mental age of about nine years. They rated his IQ as between 35 and 50. They were in general agreement that he did not know right from wrong. One indicated that he probably acted from an irresistible impulse.
*108 The non-concurring psychiatrist was not as positive in his views. * He said that he cоnsidered that defendant had mild mental retardation, but that he did not see anything psychotic about him, that he was probably fearful and under some pressure, but that he knew right from wrong.
Appellant was 26 years of age at the time of thе crime. The only evidence as to his school record was that he had been a “slow learner”; that he had “progressed as far as the ninth grade, but he hadn’t done ' very well, and his reading was barely adequate to make it thаt far.”
The lay testimony on the issue of defendant’s insanity was all in favor of the State, but it was limited to testimony by the sheriff of Coosa County, the chief of police of Goodwater and a policeman of the Goodwater Police Department. Each testified that he considered defendant sane. The sheriff had observed him in jail, while he was making long distance phone calls, playing cards and looking at magazines. The Chief of Police of Gоodwater had observed defendant playing pool and on the streets; he had known him for four and one-half years and had seen him nearly every week; he had never observed any abnormal or unusual behavior by defendаnt. Officer Strong of the Goldwater Police Department had known defendant about twenty years; he had worked at a sawmill with defendant while defendant was stacking lumber and running the chipper; he had talked with defendant on many occasions, had visited in his home and defendant had visited in the witness’ home; he had never seen him acting abnormally.
Notwithstanding the changes in some other jurisdictions, and the many suggested changes in substantially all jurisdictions, of the rule that sets forth the mental capacity to commit a crime,
1
the Alabama rule is still that
M’Naghten’s Case,
8 Eng.Rep. 718 (H.L.1843) as supplemented by
Parsons v. State,
“ ‘[Cjourts should be careful not to invade the province of the jury in cases of this character. Although the evidence may be offered only by the defense, and all tend to one conclusion, yet in view of the presumption of sanity, if the evidence is inconclusive, and reasonable inferences may be drawn that the act was that of a sane man as defined by law, the affirmаtive charge should be refused.’ ”
In Boyle v. State, is contained almost all the testimony of then prominent physicians and is much stronger for defendant than testimony in the case before us. Unlike Boyle, we see no “grave question presented on this appeal . . . whether the defendant was due an affirmative instruction on his plea of ‘not guilty by reason of insanity.’ ” Like Boyle, we are affected by *109 the same statute now codified as Code of Alabama 1940 Title 15, Section 422 as follows:
“Every person over fourteen years of age charged with crime is presumed to be responsible for his acts, and the burden of proving that he is irresponsible is cast upon the accused. The defense of insanity in all criminal prosecutions shall be clearly proved to the reasonable satisfaction of the jury.”
Our review of the record pursuant to the provisions of Title 15, Section 389, Code of Alabama 1940, fails to convince us that there is any prejudicial errоr therein. We note, however, the possibility of reasonable ground to doubt the sanity of accused so as to make applicable Code of Alabama 1940, Title 15, Section 426, mandating, in that circumstance, a sepаrate jury determination of his mental competence to stand trial.
Pate v. Robinson,
The judgment of the trial court should now be affirmed.
The foregoing opinion was prepared by Supеrnumerary Circuit Judge Leigh M. Clark, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment below is hereby
Affirmed.
Notes
. A valuable treatise on the subject is Professor M. Gardner’s Criminal Responsibility and Exculpation by Medical Category — an Instance of not Taking Hart to Heart. 27 Ala.L.Rev. 55 (1975).