*1 200 Club, Country 461 v. Arizona 102 P.2d 677 Boozer
Ariz, 544, (1967), P.2d 630 we stated 434 Arizona, Appellee, STATE of that: judge in cases where the Timothy MALUMPHY, “[e]ven [trial] Appellant. he will is of have to [the] No. 1751. party direct a verdict or the one Supreme Court of Arizona. raised, other on the issues that have been In Banc. ordinarily should hear evidence 3, Dec. attempt the verdict than direct rather try on a the case advance motion summary judgment.” 102 Ariz. at
Savings and Loan Ariz. (1965), that: we stated summary
“A judgment motion for
granted erroneously if on an examination the entire record it found
disputed
could,
fact
issue exists which
true,
judgment.”
affect
the final
Ariz. at
An examination of the record
shows disputed there are fact issues appellees Scharf,
as to Silverman, Rosen-
thal Diagnostic Laboratory true, could, if judgment. affect the final example,
For Dr. con Silverman report pathology
cluded slide D-4435-60,
numbered mole re December,
moved from Mrs. Tessitore “no definite showed evidence of However,
malignancy.” Hoenecke, Dr. H. pathologist,
another Phoenix examined the
same tissue slide after the commencement that a this action and concluded melano present.
carcinoma Whether or not diagnosis
Dr. original Silverman’s was in according accepted
correct medical
standard, disputed of fact issue
might judgment. well affect the final
That portion previous of our decision dis-
missing appeal appellees as to Silver-
man, Scharf, Diagnostic Rosenthal and
Laboratory hereby and the sum- vacated
mary judgment granted them below is
hereby and remanded. reversed
Appellee’s rehearing motion for denied. HAYS,
McFARLAND and JJ., concur. *2 the offense defendant
At the time of
at
employed as waiter
Laffite’s res-
Scottsdale,
He testi-
in
Arizona.
taurant
contemplat-
for
time he had
fied that
some
courage
take
ed
but lacked
suicide
decided to kill
He therefore
his own life.
could
tried for
that he
someone else so
penalty. His
given the death
murder and
April
plans
the afternoon
took form on
15, 1966,
38-caliber
purchased a
when he
pawnshop. At
Phoenix
from a
revolver
day
p. m. on the same
approximately 6:15
dining room
employee’s
he
into the
walked
he was
employee
one
He told
at Laffite’s.
about em-
quit,
spoke
and
to others
going to
Robert
Springs.
ployment
Colorado
re-
a sarcastic
allegedly made
Bartlebaugh
pulled
defendant
and
mark to
the chest.
and
him
gun
out
shot
main
Karabogius was
Constantine
he
the shot
room,
hearing
dining
upon
Defendant
employee’s room.
entered
stomach,
Karabogius
shot
then
the floor
on
downward
he fell face
Bartlebaugh
again
the back.
shot him
he
hours,
was dead
Karabogius
but
lived four
scene.
on
arrival of officers
upon the
restau-
then walked
Defendant
up
gave himself
later
hours
and some
rant
policeman.
brother, a
his
Phoenix
picked
Defendant
testified that he
his
didn’t deserve
“they
two victims because
action
live.”
further
that his
stated
taking
their
was sanctioned
lives
God,
sight
had done
he
and that
God’s
knew he
that he
wrong. He admitted
no
society, and that
breaking a
so-
law of
action,
ciety
him
his
condemn
“stop” the two
had to
he felt
someone
Lee,
Defender,
Ross
Public
Vernon B.
others,
since his
hurting
men from
Croaff,
Defender,
Former Public
Grant
the one to
already
life
ruined
Laney,
Defender,
Deputy
Former
Public
it.
do
Linton, by
Beauchamp
Lewis Roca
&
John
Moeller,
Oehler,
Flynn,
Terry D.
At
trial
his
defendant raised the defense
J.
James
Phoenix,
Roush,
appellant.
request.
Charles D.
insanity
his mother’s
hoped
stated
the stand that
UDALL, Chief
him
him
guilty
would find
Justice.
sentence
Further,
he made motion
Timothy Malumphy
to death.
Defendant
was con-
court,
denied,
his'
to have
first-degree
victed
murder
counts
op-
granted him the
appeal
reviewed
dismissed. We
and sentenced
have
to death. We
appear
portunity
us on
own-
and conclude that
before
the record
trial
behalf,
appearance he stated
in that
judgment
should be affirmed.
fair
given
entertaining
felt
had been
trial
requisite premedita-
Despite
an appropriate sentence.
tion.
a review of
efforts we
undertaken
The court refused
to instruct
record,
the merits
will discuss
jury on second-degree murder and man
assigned
arguments presented by
coun-
slaughter. A
in
is entitled to
sel.
*3
on
structions
the lesser
offenses
second-
degree
manslaughter
murder and
if a rea
It is contended that the trial court
interpretation
sonable
in
evidence
in instructing
erred
M’Naghten
on the
guilty
dicates that he
of
could be
these
rules as the test
responsibility,
for criminal
Schroeder,
fenses. State v.
95 Ariz.
rather than the test set forth in the Model
clearly
(1964).
“MRS. cause. Affirmed. any case or "THE Is COURT: your of facts which would state HAYS, JJ-, con- imposition STRUCKMEYER belief warrant cur. penalty?
*7 death presentation in his oral McFARLAND, con- (specially Justice Court, he believed stated that before curring) . penalty imposition the death reached concur in the results fact, it be and, justified, demanded that of the however, because opinion; majority repre- swiftly carried A defendant out. decision, that it is feel importance court appellate in an senting himself ques- on express views desirable testify, only matters present and can the defendant sanity of relating to the tion if he present be able which he would at time of case, both affects the as it should attorney; and were an no and since acts commission of the permitted punishment choose his supplemental state- requires This date. a crime. case. of the facts ment defender public The briefs both the Timothy Malumphy Defendant sufficiency Flynn question charged with murder in the two counts of insanity, contended being instructions degree. first The first was murder should recommended follow those Karabogius, of one Constantine and the However, Penal the Model Code. Bartle- second murder of one Robert instruction, objection to been which has baugh. guilty He was found on both McNaghten to as test under the referred counts, punishment fixed sanity, sufficiently to re- rule as broad death. quire the in- an examination as to whether facts of struction covers the law under the At the trial he was defended the Pub- *5 by the pointed the instant case. ma- As out Office, lic Defender’s appeal who filed this rejected jority, previously this Court has from the conviction and sentence. approved other tests and under the test Public Defender’s filed an Office able and Schantz, McNaghten Ariz. rule. State exhaustive brief in behalf of Schantz, supra, signed by Croaff, was Vernon Pub- held: Defender, lic Laney, Deputy Grant Public Defender. Defendant filed a mo- legal insanity “This test two ele- of has personam appeal, tion to dismiss the An accused had at the ments. must have requested represent to be allowed to him- time of the the criminal commission of self. His appeal motion to dismiss the was act: Court, denied this and an order entered “(1) a defect as not to Such of reason appoint Flynn attorney. his as John J. act, quality the nature and know of The firm Beauchamp of Lewis Roca Lin-& or ton, by Flynn (hereinafter referred John J. know, “(2) If he did that he did not know Flynn), to as also filed an able and exhaus- doing wrong.” he was what was supplemental tive brief behalf of de- For the time first we are confronted with reply appellee’s fendant and a brief an- question should the in- court have swering brief. structed the as to whether the day the 30th August On of 1968 defend- wrong” referred was a “moral or a ant filed a motion an evidentiary hear- land,” “wrong the law or of ing ability rep- to determine his mental question both? This requires careful himself resent as his own counsel. There- analysis of both the facts and the law re- after, October, day the 18th this lating subject. to this made referring question Court an order Flynn’s opening brief it was stated: “ competency of defendant’s mental to waive * * we deal here with awesome represent counsel to the himself Su- question of whether the take State should perior Maricopa County Court of for de- seriously life young disturbed hearings, termination. After the trial court approach man. the Court in confi- in the answered affirmative. Court, dence fulfilling its case, obligation willing- discharge, grave sent to After his he Ft. Grant. n informedhis mother that weigh ly carefully per- all the did she consider and if by appellant in arguments the mit him to Force he advanced enlist Air light contemporary quit eighteen constitutional school as soon he was great anyway. with standards and will re-examine enlist care which have heretofore those issues charged with fraudulent enlist- was against appellant been decided in an ment because he had his com- not revealed ” day. earlier proven mitment to Ft. Grant. It was fraudulently he did not this matter leave agree ques- that the evidence without out, but had omitted because the officer mentally tion shows that the defendant was necessary. told him it was not While disturbed; hence, must be awaiting martial restricted to court he was carefully considered as to whether base; however, he left the base on sev- proper test used determine whether permission eral and was occasions without legally he sane at the time of the com- reported by airmen. Because one mission the crime. Did felt unjustly he was treated took quality “know the ? nature acts” room, gun and went to airman’s did, If he did he know that what told him him. He shot he would shoot doing wrong wrong morally, usually — him, the airman’s but missed. He took God, under the referred laws hostage shot him in roommate as a man, wrong under the laws of or both? reported punish knees to the man who requires analysis This evidence. testified:, regard him. In this early Defendant’s life was a series un- “Q. hurt have the same' Do fortunate events. His father either you, hurt someone that did hurt birth, Malumphy’s dead at died when he someone else? brothers; was an infant. There were four it’s “A. cases where think dead; city one whom is now and one is a merited, yes, it does because policeman. worked, His mother and de- have, was not there then I some- wouldn’t grandmother. fendant lived with thing happened and 1 would have grandmother very and his *6 had close rela- a shot him. wouldn’t have tionship, grandmother but his turned him mother, telling his mother him his “Q. abandoned him he needed her you when feel that it was Lord Do age, polio early the most. He had at and using you this case that was ? grandmother disciplined never him after question, yes, “A. I have to answer 1949,upon grand- that. the death of the again using wasn’t me because He father, placed he College in Girard punishment, instructing sense Orphanage Philadelphia. grand- His go. He then let He wouldn’t have brought mother died in and he was stopped way or would have it in some home school to the funeral. He evi- fashion.” death, denced no sorrow at her whatsoever he was court- Because of this incident laughed home, in the funeral and acted as to Fort Leaven- martialed and sentenced though party. he at went He back prisoner, There he a fellow worth. stabbed orphanage, expelled, to but was after examination, given dis- psychiatric and which he came live to Phoenix to with his prison, charged from the federal mother who had remarried. purpose served seemed there could be no testi- school, His mother high He did not his further confinement. enrolled in but treatment, graduate. thought psychiatric fied he entitled to needed for com- sign complaint money, have a car. He had some would earned Hospital. He secured permitted buy but because he was not a mitment to the State being- last at ride, jobs he work at joy car stole one for a and was various —the working look, L&ifite’s' Restaurant in Scottsdale. It was and they say Hey, will — acquainted guys there he with the two became things look at all the rotten they “bad blood between doing, someday victims. There was this, are if I am like very beginning. According them” from the later Ion a position have and I make testimony he was mistreated. The to his I people out. If treat go- what’s down, thereby ing happen number of his tables was cut person other com- some they curbing tips, many ing and times would along seeing them doing this give it take me the food he had ordered nine they times out ten wouldn’t other his customers to customers cause guys, do it. And those you two can’t cure longer they wait their He would then them, food. are not you curable. Unless get difficulty tips, having fewer something drastic, and he do going are 15, 1966, April he keep with his finances. doing On They it. don’t learn. Most purchased gun. approximately well, At 6:15 say most, I shouldn’t I them — p. m., employees’ dining say walked into should large amount of them are room, quit, going very told hypocritical. them was much spoke employ- employees to the other about “Q you you Do feel had a to do' Springs. ment After some Colorado this? - Bartlebaugh words with the deceased Definitely. “A definitely had the him, Karabogius shot then shot right to it. do dining he came into the room. “Q Why? testimony setting In his forth his reasons “A doing Because was something for killing decedents in the instant society really society consciously case, he testified: say, yes, wouldn’t do it. But subcon- “ ** these turned around men had sciously want it would—would done be- did, anything and done to what I similar good people. cause there were no I was hurt, children, then have doing society a favor in it’s own [sic] hurt, family their wife is whole way my way, say I should —in -hurt, where this man who didn’t deserve upstairs Man showed this was live had no to breathe all was right, that doing I was a service so- why going breathing, around should ciety, that He condoned it. somebody, get ? hurt else deserved “Q Myself, life, How my do know that? I’m with life finished is finished. Well, it, “A if He hadn’t had condoned expect, so, hope very “I much that at the stopped have it. That’s the end will see trial .fit same—same as gun I said before. The let me have the death sentence as I’ve fired, wouldn’t got have I wouldn’t have asked for. shells, I couldn’t got gun, take care of “Q [*] Aren’t there are [*] people [*] like this? [sic] [*] other [*] ways [*] the man wouldn’t wouldn’t have been I could make it happen have come where I wanted without to involving' work, it, so many people too letting somebody get or effect, going “A Not that’s to have an hurt in that fashion and He didn’t want going doing that’s to last and it’s, done, anything happened. could have I somebody also done in else. front of could my have had a car wreck. you it, people hap- When do these see thinking and I wasn’t pen alright, like .the other waiters — it, changed Lord —He would have say now, hey, see these rotten so what — it, go through wouldn’t have let me with Very got. so’s few of the waiters way wouldn’t have let me think the I except for one other waiter —two other n think. waiters, say through I’d the discussions we had like either them as were [*] [*] [*] [*] [*] [*] grandeur paranoid delusions fested this? to do you you feel "Q Do well, not all persecution practically all— had lost shortly I after “A I realized life, think, of his the death I since no there my job at Carefree grandmother in ’58. be that it must reason to other live no don’t my one doesn’t son it’s “Q “A “Q “A wasn’t “Q Why? “A good time time cowardice. with way Do Because broke Definitely. Do Definitely have that much deserve I you you a lot can’t go do deserve feel trouble to find I back guts. take that, not.” They say it takes you guts live, past experiences my to die? find the law of broke Well, that is seeing this kill himself. somebody that God’s law? there life, guess them. rotten and the land. I is a only per- I the defendant upon mental illness “Q ions effect on the shootings does, “A The illness does “A There [******] ****** thinking process. way Now, there a reasonable as that occurred on say, thinking individual your opinion, a is self-control connection, yes. connection have a connection suffering psychiatric you not have too It affects but, so afflicted. described April Doctor, between think, it affects certainly, and the which based 1966? much opin- with It paranoid people suffering from most psychiatrists testified at A number of states, able including the Breitner testified: trial. Dr. Carl to exercise self-control. suffering Malumphy “A I think Mr. category from a condition that American a chiatric paranoid ****** glossary Psychiatric state. described and manual Association fits best called psy- “Q a scribed mental disorder [******] whether April Doctor, ? 15, 1966, do shootings you or disease have an a product which occurred you such de- “A delusions which as nature. so short noid paranoid delusions Paranoid lasting These delusions have to state state, justify the book it manifested maybe again diagnosis of says, maybe means a chronic be para- de- tient’s mental status.” think that “THE WITNESS: Dr. Richard E. [******] H. is a Duisberg, product * * after of this Yes, I testi- pa- stated, persecution of fying background, lusions of delusions defendant’s being with grandiosity such as endowed diagnosis: when asked for a special powers, have mission disturbance, Personality pattern “A. than fulfill certain or to be better acts paranoid personality. thereby able average individual and to do. to do things others are not being able the acts in “Q [******] Based question, upon his telling you have an about “Q Malumphy’s para- Did find Mr. time at the opinion as whether *8 noid state to be chronic? nature the crime itself he'knew the of This, course, determined “A of has to be consequences of his act? his- history according Yes, he “A did. tory which I and which obtained Doctor, And, upon what he previous files, “Q is a based learned from life, past all condition, told about has mani- has chronic because he
208 determining it, “M’Naghten be- did he know the difference whether of rest modified, wrong? rule” should be rejected right arid
tween
symptoms
“Q You found evidence of
“A Yes.
gance and
the —he
“A Yes.
about the
“Q
right and
and this
children.
“A
“Q Does he
“Q
“A He knéw
profound
self-righteous
n
given a fair
way is
You
You
has
in a sense is a
identifies to some
injustices
found evidence
wrong.
He feels that
found evidence of
self-justification?
defect
morally wrong ?
yes.
self-righteousness
a rather
also
the social standard
chance.
morality.
know,
He is
that are in
judgment?
keen
rather
Doctor,
of—evidence
quite
often
sense of
extent with
hates arro-
keen sense
grandiose
in others
indignant
paranoid
that his
world,
men that he would then himself be exe-
cuted. We must
nerve
off
bility
only
admitting that he knew it was a violation
England,
ant believed that the
the Model Penal
Homicide
pulse theory,
rule,
We
the “laws
life
criminal-responsibility
dead,
one of his
has
did he feel
test,
[guts]
have for
changed
decedents,
Act,
and that he did not have the
under the
State v.
testimony
such that
defendant
to take
and the
1957
society.”
the first
gave
objectives
in
Code,
therefore determine the
it was his
(586
favor of
but
act was
Schantz,
his own
laws
shows
diminished-responsi-
us the
the irresistable-im-
testified that not
Eliz.
would be
test set forth in
It is also novel
time a
also felt
that defend-
2,
even
duty
life,
McNaghten
committing
killing
God while
c.
latter test.
11),
case in
though
better
2.§
kill
type
law to the
necessary
of instruction
?
..hallucinations
n
under such facts.
"A
hallucinations
Grandiose
judgment
present
he felt his
of an in-
sense'that
For our
purposes we need not
enough
dividual was
for action.”
indulge
relating
background
history
McNaghten
and the
al-
other
discussed,
from,
quoted
I have
nor
approaches
ternate
this has
since
been done
experts
hearing
testimony of the
at the
exhaustively throughout
often and
on the motion
determine whether
United States and Great Britain. Refer-
competent
represent
him-
many
ence to but several of the
excellent
Court,
only
self before
as it was
evi-
opinions will suffice. See
Blocker Unit
introduced,
purpose
dence for the
but
States,
U.S.App.D.C.
ed
110
288 F.2d
there,
testimony
stronger
was much
[Judge
853
Burger’s concurring opinion],
experts
the three
two of
stated that
denied
cert.
U.S.
S.Ct.
competent
in their
he was not
167; Harvey
(Miss.),
L.Ed.2d
v. State
represent
testimony
himself. Their
went
108;
State,
So.2d
Parsons v.
81 Ala.
regard
much further
abil-
to his mental
torn between what his condition Act, considered the definition Homicide believe, obligations. leads him to are two wrong as follows: compels His mind him to follow his dis- “ * * * appellant, Counsel obligation torted view of his to God. This suggested argument, very careful ais conscious an decision —not irresistible in the ‘wrong’ it is used as word that the impulse spawned by a diseased aber- —but contrary not mean did M’Naghten Rules mentality. ration of his Is he the less meaning, qualified law, but had some insane because he is aware of the State that, morally say, is law prohibiting his act? Even Blackstone mind state person was if a difficulty question with this of moral reason through a defect public responsibility. versus doing, al- thought that what law, it was though knew nature, “Of this place, first is the kind, beneficial, praise- or really obligation subjection, whereby of civil him worthy, that would excuse the inferior is constrained superi- or to contrary to what his own rea- only however, dis- law, can “Courts son suggest: inclination would in ac- that which tinguish between legislator iniquity by establishes with law cordance law, subject commands to do many acts contrary There are to law. an act contrary religion or sound expression know, all use morality. How far this excuse will be cases, of the old found in some to be conscientiae, admitted in wheth- foro and man. contrary to the law are er the inferior in this case is not bound Decalogue, are commandments In the obey divine, rather than the hu- ‘Thou shalt not ‘Thou shalt kill’ law, decide; man business to contrary to the are not steal.’ Such acts though believe, among contrary to law of man and casuists, hardly bear a doubt. regard the law of Sev- God. ” ** IV Blackstone’s Commentaries Commandment, shalt not ‘Thou enth (Oxford 1966) Ed. that, adultery’ it will be found commit concerned, far the criminal law is so poles of the involvement of contrary to the law though that act is “right law in the definition of God, contrary to the law of wrong” decisions are best shown law That not mean man. does An Kansas Utah. State adultery: only say encourages it is drews, 357 P.2d Kan. nót a criminal offence. the court stated: an act is con- “The test must be whether “Perhaps, with the somewhat connected trary to law. will,
proposition of free is the contention rule some merely people applies a moralistic M’Naghten concept “In the court, there is no ‘wrong’ in the This has never been doubt as a criterion. word contrary courts, knowledge, thought by M’Naghten to law' Rules' means to our *10 210 vague meaning “wrong”
and does
have some
as used in
opin-
the test was an
may vary according
the
by
ion written
the able
Judge
and learned
persons
Cardozo,
particu-
of different
whether a
later
of
United States
Justice
”
might
lar
justified.
Supreme Court,
Schmidt,
not be
People
v.
216
324,
519,
945, L.R.A.1916D,
N.Y.
110 N.E.
Bergin
But
[1952],
see
v. Stack
Austl.
reargument
762,
denied
111
216 N.Y.
N.E.
810;
L.R.
[1954],
R. v. Balaban
S.Austl.
S.R. 282.
propounded is
“The definition here
On
other hand the Utah court has
into
been
forward
one that has
carried
offender,
held that an
to be considered le-
expressly
judges
held
statute. The
out
gally responsible, must know that his act
nothing of
that a defendant
knew
who
legally
both
wrong
morally wrong.
responsi-
none
less be
law would
Kirkham,
State v.
Utah
2d
319
wrong,
if he knew that
act was
ble
approved jury
the Court
charge
which,
therefore,
they
by
must have
required
acquittal because of insani-
meant,
morally
if he knew that
it was
ty if
jury
“that,
found
when he fired
wrong.
also be re-
Whether
shot,
he did not
it
wrong
know was
sponsible
if he
that it
knew
the sense that such act
by
was condemned
law,
did
it
be moral-
not know to
morals or law.” The Court said:
ly wrong,
that was not con-
ap-
uncertainty
“Neither
nor confusion
course,
cases,
In most
of
knowl-
sidered.
pears
language.
such
It
tells
justify
edge
illegal
that an act is
they
they
veniremen
cannot convict if
knowledge
the inference
it
believe defendant
such ex-
was insane to
wrong. But
is the
none the less
tent
that he did
his act
not know
knowledge
wrong,
conceived of
morally;
condemned
them
tells
wrong,
been es-
seems
have
they
they
if
cannot convict
believe
by
tablished
the control-
decision as
point
he was insane to the
where he did
ling
certainly
That must
been
test.
have
not know his act was condemned
the test under the older law when the
* *
law.
capacity
distinguish
between
“We consider that
the instruction con-
wrong imported
capacity
to dis-
taining
disjunctive
they
jury
told the
tinguish
good
between
evil as ab-
could
they
not convict defendant
be-
qualities.
nothing
stract
There is
lieved that because
mental
disease
justify
the belief that
the words
he did not
wrong
know his act was
wrong,
became limited
morally,
though they
even
believed he
by McNaghten’s
right and
Case to the
knew full
prohibit-
well that his act was
wrong
particular act,
of the
cast off
ed
law. We also consider that
morals,
meaning
their
as terms
instruction
given
jury
told the
pure legality.
became terms of
they could not
convict defendant if
believed that because of mental disease
guide
help
“We have still another
us
he did not
legally
know his act was
McNaghten’s
to a sound construction of
though they
even
believed that
statutory
Case and of the
rule derived
he knew full well
that his act was
guide
from it. That
is found in the*
* * * n
morally.
practice
judges
whom the decision
“ * * *
given
instruction as
applied.
has been
We refer to a few
acquit
possible
jury
made
among many.
instances
In R. v. Town-
reasons,
defendant
* *
for either of two
830, Martin,
ley,
B.,
3 F. &
left it
F.
Gardner,
*.” See also State
say
prisoner
whether
S.C.