201 P. 91 | Ariz. | 1921
The appellant appeals from the verdict and judgment of conviction of murder in the first degree entered against him on the eighth day of February, 1921, in the superior court of Maricopa county. The jury in its verdict fixed the punishment at death, and the court thereupon sentenced the appellant to be hanged on the twenty-first day of April, 1921, at the state penitentiary. The errors assigned by appellant are four in number, as follows:
“I. That the verdict and judgment are contrary to the law and evidence in this: That at the time of the commission of the crime the evidence shows that defendant was not rational, but was beyond doubt insane and unable to comprehend the wrongfulness of his act, and incapable of forming* a criminal intent.
“II. That counsel for the prosecution were guilty of misconduct during the course of the trial and during the argument, neither of which, when once placed before the jury, could have been cured by rebuke or admonition from the court.
“III. The court erred in refusing an instruction on insanity offered by the defendant.
“IV. That the sentence is excessive and is too severe in this case.”
We have carefully examined the transcript of the testimony, and especially that part of it appellant cites and relies upon to sustain the proposition contained in his first assignment, to wit, “that defendant was not rational, but was beyond doubt insane,” etc. There is not an iota of evidence to sustain this
The instruction so requested is in the following language:
“You are instructed that all the evidence tending to prove insanity of the defendant is to be weighed by you in your deliberations, and that the fact that the defendant attempted to commit suicide must be weighed along with other facts tending to prove insanity of the defendant at the time of the commission of the crime, and after due deliberation, if you entertain a reasonable doiibt as to tlie sound mind of the defendant at the time of the commission of the crime, you will return a verdict of not guilty.”
It is elementary that instructions must be based upon the evidence. Requests assuming a state of facts that do not exist in the record should never be given. We do not understand that the mere attempt to commit suicide by appellant would be evidence justifying the court to submit the issue of his sanity to a jury. Hopkins v. State, 4 Okl. Cr. 194, 108 Pac. 420, 111 Pac. 947. We think it would have been error for the court to have given the requested instruction, in the absence of some evidence on that issue.
The instruction was properly refused for another reason. It fails to correctly state the law. It is not enough that the jury “entertain a reasonable doubt as to the sound mind of the defendant at the time of the commission of the crime.” They must entertain a reasonable doubt of his ability to distinguish between right and wrong as applied to the act involved.
“The authorities are unanimous in declaring that weakness of, or deficiency in, any one of the mental functions, is not of itself sufficient to excuse, the perpetrator of a criminal act. The ancient and generally accepted test for determining the punishability of one taking life is the capacity to distinguish right from wrong.” 13 E. C. L. 710, § 10.
The second assignment is based upon misconduct of the attorneys for the prosecution during the course of the trial and during the argument. The appellant fails to point out anywhere in the record any fact whatever to sustain this assignment. He asserts in his brief that the attorney for the prosecution “abused the personality ,of defendant, calling him a dirty dog and a skunk.” This language, if uttered by the attorney, is not to be found in the record, and we have only the assertion of the appellant that it was used. If the prosecution was guilty of any misconduct, this court would have to insist that it be evidenced in a more regular and solemn way than the mere statement of appellant in his brief.
Turning’ to the fourth and last assignment, we give a succinct statement of the facts of the case in refutation of the proposition therein contained:
The appellant and the woman he killed, Adelina Sosa de Barillos, had been living for several months
From the facts we are not surprised that the jury returned the verdict inflicting the death penalty. It would be difficult to conceive of a more cold-blooded, atrocious murder than the facts show in this case. The only excuse the appellant gave for taking the woman’s life was that she had refused to live with bim any longer. This in law was no excuse. The jury saw in his conduct the highest culpability, and came to the conclusion that the law demanded the in
The judgment of the lower court is affirmed.
The date, April 21, 1921, originally fixed for appellant’s execution, having passed, it is ordered that judgment be entered by this court fixing the time when the original sentence of death shall be executed as required by section 1177 of the Penal Code.
McALISTER and FLANIGAN, JJ., concur.