State v. Noble

284 MONTANA, Respondent, STATE OF Plaintiff Appellant. NOBLE, Defendant

LLOYD JAMES No. August 2, 1963. 12, 1963. Decided Submitted March September 5, 1963. Rehearing denied 384 P.2d Anderson, Symmes, Forbes, Brown, Weymouth Peete & D. Symmes, (argued), Billings, appellant. for Speare, County Atty.

William J. (argued), Billings, Forrest Atty. Gen. Anderson, Gen., Douglas, A. Asst. Atty. H. Donald respondent. Helena, (argued), Opin- delivered MR. JUSTICE JOHN C. HARRISON ion of the Court. committing first by information with

Appellant charged assault. degree degree murder first I “COUNT “In District of the District Court Thirteenth Judicial Montana, Yellowstone, County of of and for the State February A.D. day on the 19th of comes William J. Speare, County Attorney county, of in said Dis- said and here upon Court, trict and in official oath the name Montana, authority of That State informs Court: County NOBLE late of Yellow- one LLOYD JAMES day Montana, on 16th of Febru- stone, or about the State Mon- ary, County A.D. at the of Yellowstone State LLOYD tana, MURDER, in that said the crime of committed did, there, then, and NOBLE, being, and there JAMES then feloniously, pre- deliberately, wilfully, wrongfully, unlawfully, kill and murder one meditatedly aforethought and with malice NOBLE, contrary being then there being, a human and ROSA in case made form, of the such force and effect statute the dignity the State against peace and of provided, and and the of Montana. II

“COUNT NOBLE, LLYOD on about “That the said JAMES or the February, 1962, County day 16th at the and Yellowstone Montana, IN THE committed the crime of ASSAULT State DEGREE, NOBLE, in that the said LLOYD JAMES FIRST wilfully, wrongfully, being, and there then and there did then unlawfully feloniously, the to kill a human and with intent MAICHEL, being, assault a human to-wit: SHIRLEY being, Remington firearm, A loaded to-wit: Model with a contrary form, Rifle; and the force effect the Roberts such, peace provided, against and the in case made statute of Montana.” dignity of the State This information arose out of events that on Febru- occurred ary evening appellant 1962. On that the went to the home of Mr. and Mrs. Elmer Maiehel where his divorced wife lived housekeeper and worked as a for the Maichels and their two being talking children. After admitted and to Mr. Maiehel for minutes, place during a few which time no conversation took women, go saying, with he “I’ll the two started to outside be testimony only right opened back.” The he door reveals that the sufficiently get placed to reach outside to a rifle that had he just door, outside the and when he came back into the room pointed he it at his ex-wife Rosa who was seated on a couch point in Mrs. Mai- living with Mrs. Maiehel the room. At this gun God, gun” chel first saw the and shouted “Oh he has a immediately firing hitting words to that effect. He commenced exclamation, Maiehel, Rosa. run Mr. at his wife’s had to a bed- get pistol appellant room when he returned he found the appellant struggling with Mrs. Maiehel. He tried to shoot the pistol jammed, during but the time it took to clear the the pistol, arm, appell ant Mrs. in shot Maiehel hit her rifle, with butt of and shot her twice while head lay shoot Mrs. she on the floor. He tried twice after that to empty. Mr. lay floor, gun Maiehel as she but appellant. to shoot the again Maiehel had returned and he tried wounding appellant the arm This time he succeeded jammed strug- after which the two men gun again before the finally appellant. overcoming Mr. gled, with Maiehel dispute There little on the evidence as to the commission police two crimes. The were at the scene within min- complete investigation utes of its occurrence made addition, they appellant In physical custody facts. took into appellant Mrs. Maiehel and got hospital both to the hospital waiting "While at surgery for medical aid. officers, Ness, Lt. took a statement appel- one of the from the excep- has taken appellant of which the admission lant to the tion. necessary reveal to two families are background

The fully understand and to tragedy, this that lead to the events in Harri- lived previously had two families the defense. The friends. County and had been son, Montana, in Madison parents had married in 1953 and were the The Maichels They in 1957. boys. acquainted became with Rosa Noble two appellant Mrs. Maiehel in the summer of 1959 the According to evening. go out with him one She refused. get tried to her to place circu- this took rumors were a few months after Within “unnatural community that there was an the small lated about women, two Mrs. Noble relationship” existing between the Maiehel These rumors became so bad Mrs. Maiehel. and a nearly up. result of rumors marriage broke As Harrison, left the town of appellant, Mrs. Maiehel threat of the family and the sold his business months Mr. Maiehel and within counseling sought they out rejoined Billings. Mm in There assisted Chemodurow, psychiatrist, who a local Dr. Theodore later this As will be noted re-establishing home. their them had also tried appellant and had same doctor treated divorce. prior to their appellant and his wife counsel in 1921. In in the appellant was born 1942 he enlisted participated in of Tarawa and the Corps and the battle Marine Shortly Saipan after the battle campaigns of and Okinawa. hospitalized show and his medical records Tarawa he was illness, being diagnosis first for mental he was treated depressive”, that after weeks of but several “psychosis—manic changed fatigue”. to “combat He diagnosis was treatment duty, campaigns, in twromore and received served back to went discharge. As a result of his service he drew honorable reaction, anxiety psychoneurotic and neur disability, percent Ms condition that determined mental asthania, based leaving the service he returned After connected. service be appears family ranch and to have sue Montana, took over cessfully years. run it for a number of He married and at the children, boys a In girl. time of the crime had three two and 1951, due his him to Mount to mental stress brother-in-law took Airy Denver, Colorado, in for Sanitarium treatment where schizophrenia. diagnosed suffering doctor him to be from He given was shock treatments and treated for two weeks and dis recovered, charged having apparently though the clinical report “prognosis guarded in stated must be somewhat view therapy hospitalization.” the short duration of September Hospital In 1959 he was treated at the Veteran’s Harrison, Montana, by Crowley, psy- at Fort Dr. the resident Psychoneurotic reaction, diagnosis chiatrist. There his ivas: —anxiety Competent. put He was on tran- neurasthenia. Dr. Bil- quilizers, and referred to Theodore Chemodurow of lings out-patient for Dr. him treatment. Chemodurow treated paranoid schizophre- diagnosed to 14 times and him to be a in nic. These treatments were the later months 1959. Dr. session, but Chemodurow also saw Mrs. Noble at one she was patient unwilling and did not return. The Nobles were di- vorced the summer of 1960 appellant got custody and the of the children. He moved over to Stevensville and from the appears evidence it that he had a caring difficult time for his family, eventually having to board his daughter though out kept boys. he the two eventually Mrs. Rosa Noble went Billings where she hired out to baby the Maichels to sit and take care of their home in Billings. All of these facts seem confirm, in the appellant, mind of the the fact that there relationship was a women, between the upon them fo- he cused all of his difficulties. He blamed Mrs. for Maichel break- ing up his day home. On the of the shooting appellant had driven down to the Yellow project tail Dam seeking work, no jobs were available so he returned to Billings. In his state- appellant ments the said: “I had been thinking all way from Hardin about all the trouble this deal had caused me and my children and I up my made mind before I arrived in Bil- and kill his I was Elmer house

lings going Maichel’s my I with wife, my had 257 Roberts Rifle ex-wife Rosa. my usually I pickup carry me in it with me when travel.” —I just did, though previously As been stated that what he has only killing her. he wounded Mrs. Maichel instead defendant, shooting, with his attor- after the

One week plea guilty of not to each ney, appeared court and entered set trial information and the case was counts May jury trial, May 7, the time set for 1962. At Hughett and testimony Drs. was taken from picked trial, competency and the to stand to defendant’s Harr as incompetent defendant, Lloyd Noble, James jury “the found com- trial.” The defendant was to time, at and unable stand Springs on Hospital at Warm to the Montana State mitted May 9, 1962. was received concerning defendant following letter

The county. HOSPITAL STATE “MONTANA Springs, Montana “Warm 20, 1962 “June Speare “Mr. William J.

“County Attorney County

“Yellowstone

“Billings, Montana NOBLE,

“Re: JAMES LLOYD Speare: Mr. “Dear patient Hospital May 1962, 10,

“This entered Montana State pursuant 6363, District Court to Order Thirteenth Judicial care, custody District, for until treatment restored to com- petency to and declared sane able stand trial. 1962, patient, 1, hospital on was re-evaluated in a

“The June and it was recommended he be meeting clinic returned to the court. jurisdiction 1962, undersigned, 20, again examined June

“He recovered, competent opinion that he has and is with also parti- able to opinion he is my stand trial. It is further cipate in his defense. arrange the sheriff please request, or you

“Would custody his convenience? at County take him into Yellowstone “Sincerely yours, Freeman, M. D. G. “s/John “Superintendent “KGF/mlm County

“ec: Sheriff Yellowstone

“Dr. Gracia” 25, July County On defendant was returned to began September to stand trial 10, 1962, trial. The on September 13, 1962, jury ended on when it went to the who guilty twenty returned a verdict of on charges, both some hours after submission of the case to them. appellant assigned has specifications thirteen of error. unnecessary

It specification to consider each separately due specifications fact some involve same general questions of law. We will group therefore them into groups, six each covering general legal question. group

The first covers the two court’s instructions in- sanity, Nos. and 38 and whether giving the court erred them refusing proposed and in defendant’s instructions 38 In refusing and 39. so these instructions defendant claims that his basic impulse defense of irresistible at the time destroyed. of the crime was covering insanity

Court’s 30 38 Instructions and excusable are as follows: NO. 30

“INSTRUCTION “Insanity any defect, weakness, the criminal law is or dis- rendering incapable of mind entertaining pre- ease it of particular venting entertaining from in the instance the crim- every crime, constitutes of inal intent which one the elements if defendant had to to not sufficient reason be able act, deprived judge consequence of the or was so far volition, mental violence overwhelming by the or self-control there- voluntary action capable of was not that he disease wrong, he avoid the right to choose the fore not able in this him while committed any act responsible for ’’ condition. NO. 38 “INSTRUCTION if in the

“You from all the evidence are instructed that you beyond a reasonable doubt that the defendant case believe accused, in manner crimes of which he committed the information, and the time of the charged in the that at form as wrong lmew that it was of such crimes the defendant commission mentally capable choosing such crimes and was to commit constituting such crimes the act or acts to do or not to do either choice, such in accordance with his conduct governing and of guilty, even law to him your duty find under then it is at time evidence that though you believe from should per- entirely and he was not of the crimes of the commission fectly sane.” objected giving the instruc-

While the defendant they proper restatement in his brief that are tions he admits explanation so- they further of the law, needed of our but theory any one of his four impulse” which “irresistible called judge would have corrected. The trial proposed instructions in- were sufficient above-quoted instructions held that theory case. clude this of this court judge followed the admonition district

Here the Narich, 477, where 92 Mont. P.2d v. of State in the case said: the court

“# * * future, district trial of such cases In the juries as instructions to make their admonished are courts numerous instruc- possible, simple to avoid as plain and confusing and serve many given are subject, too tions on ordinary should in the case given two One or purpose. no useful supplied. Emphasis he sufficient.” Am.St.Rep. 529, 59 P. Peel, 23 Mont. In State

293 M’Naghten theory of only adopted general this court not it broad- in that Rule, further court somewhat but the went of “irresistible doctrine M’Naghten ened the to include the rule persons. impulse” to insane but limited this rule Case, M’Naghten M’Naghten evolved from the The Rules 1843), & Finnelly, 201, Eng.Rep. (Ch. Clark wherein defendant, M’Naghten, one Daniel for the murder of was tried secretary. private Sir Robert Peel’s defendant labor- was ing by being under an insane he was hounded delusion that made enemies and that Peel was one of them. The defense jury ground insanity, guilty, and the found him “not on the insanity”. Accordingly, questions put five were the fif- to judges regarding insanity, teen England the law of and from “right-wrong” M’Naghten their answers the Rules are rules lay constituted. These Rules effect down as a criterion insanity determining the test of whether the accused at the time right doing the act knew the difference between respect wrong charged. with to the act with he is which case, supra, Under the Peel if even the defendant had the capacity to distinguish right wrong, between he could still guilty be found if he could establish that he acted under impulse. However, court, an irresistible quoting from Cr.Law, Wharton’s impulse limited the appli- irresistible § “ persons cation to saying insane ‘the law all per- makes sane responsible impulses’ sons for their ”.

This court has never determined whether application right test, wrong insanity determined, or whether insanity determined, be must first and then right and wrong applied test degree measure the insanity which renders subject impulse.” a man to “irresistible Peel

Since the ease the court has labored with this two-headed bring proper it monster vain into focus. Keerl, In State v. 29 Mont. 75 P. say court seemed ques- was a jury. they tion for the There held giving separate jury right and wrong instructions on the test are irreconcilable irre- as modified with based on that test conflict others in instruc- giving impulse and that the court erred sistible test theories, state of a different on and on tions based different recognized both doc- mean that the court facts. This seems to sup- cannot set of facts trines, position that one but took the separately, approved the but on test port instruction each Peel, Chief Jus- where in State v. reasoning and result reached contradictory. The not Brantly were tice said such instructions saying: in Keerl case majority went further the any in was af- defendant case question whether the “The him from insanity degree will excuse with to such fected by if criminal done an act which would be the commission of question of certainly is not a person fact; is one it a sane supplied. Emphasis law.” Crowe, 174, P.579, v. 39 102 seems

The next case State Mont. right wrong on test and hold that instructions based the impulse the irresistible are not inconsistent. test Colbert, 584, In v. 58 Mont. 145, State 194 P. the court fol- Peel, v. supra, allowing jury lowed State the to find irresistible specifically impulse not although instructed on it the court. case, Following the ques- the Colbert court next the considered Narich, 17, v. 92 477. again tion State 9 P.2d Here the Mont. adopted of the Peel case is and there doctrine the court referred concerning to be settled law to what believes the these doc- case, quoting The court the Narich v. trines. from State Keerl, supra, said:

“ * * defendant, question whether the when he com- trial, power act which he is on had mental for mitted intent, it, and did a criminal entertain can be to entertain jury solely by submitting to test founded best reached * * * being, The was upon determination statute. sane, act, defendant, he committed or affected with when * ** may jury determine the fact in- insanity? [of it, testimony adduced matter sanity] before no what from insanity attributed to the character defend- may be

295 * * * insane irre- insane delusions ant. This includes ” followed has been cited impulses.’ This case sistible v. Kitch- and State 95 P.2d Simpson, Mont. State v. Kitchens United See also 331, 286 P.2d 1079. ens, Mont. 757. 1959) F.2d Cir., (10th States which position on instructions

Having reviewed court’s say impulse, can we M’Naghten cover Rule and irresistible have been which of the instant case that the two instructions out before, position? pointed As herein out follow this set case, instant Narich, supra, an as the State v. instruction such 30 cured confusing, No. and unless No. standing alone it, jury properly instructed.

At the time of defendant’s submission of his Instructions the proposed court impulse” refused No. 28 “irresistible saying: “I do think he right that has the to have impulse irresistible clearly more they defined so will understand the nature of the confession and charged. However, act I fully believe it is cov- ered.”

Having just gone the over State’s Instructions he must have been referring to what became court’s Instruction 30. While some 12 insanity instructions given were in the Narich covering insanity, case and court’s Instruction 30 was one of them, court, in case, the the supra, pointed Narich out, pre viously quoted, many that the of giving too instructions on in sanity “confusing was purpose. serve no useful One or two given ordinary in the case should be sufficient.” We observe judge that the district opinion followed the Narich in limiting his Instructions and did not err. Instruction 30 sets forth the “right wrong” basic insanity test referred to as the M’Naghten Rule. Instruction 38 sets forth the further test un Peel, der supra, the doctrine of State v. which is that defend might ant who not be freed from blame under the M’Naghten yet may criminally Rule be found not responsible if it is shown that he while had sufficient reason to distinguish right from mentally wrong capable he was not choosing that of to avoid such choice. conduct accord with wrong govern or not court’s refusal group The second covers whether 37 and grant proposed defendant’s Instructions follows, which are as was error. im- impulse

“28. You are irresistible is an instructed pulse growing person out of so that some mental disease afflicted, consequences able to the nature and while understand wrong, it against perceive of act him and to is charged impulse unable, because of such mental disease to resist is distinguished passion from mere or over- to do it. It is to be of, out and connected with whelming growing emotion not passion Frenzy arising solely from the of the mind. disease of furious, insanity.” not jealousy, regardless how is anger or insanity You are instructed that law “34. the criminal any defect, weakness, mind, or in- rendering is disease preventing capable entertaining entertaining its in the criminal which one particular instance the intent constitutes every act crime. When one who commits an of the elements person if a sane does know criminal done not which would be or, knowing dif- right wrong, the difference between mentally is unable to right wrong, refrain between ference to form a criminal intent wrong, he unable doing from event, case, your In such in this of crime. guilty be and cannot insanity.” guilty reason of must be verdict determining “37. In whether the defendant alleged time commission of the insane at the offenses jury is to all of his charged in the Information the consider of, before, al- and since the commission of the the time acts at by crimes, and have shown the as such acts conduct been leged appear- evidence, jury and should consider the defendant’s the of, and the alleged at the time before after actions ance and n commission offenses, jury is and if the satisfied from of the at that the time the defendant of evidence preponderance deceased, he was so his mind affected killed and shot wrong distinguish right not able to and memory that he was and 297 character, understanding of the knowledge and had no and a diseased result of his acts or as a consequence of quality and to abstain power and the will have the mental mind did not any acts responsible for legally them, was not then he from guilty him not you find should by him; and then committed insanity.” by reason of that, defendant’s assuming

“38. You are instructed quality and of his act and his knowl knowledge of nature mind, by if disease of the wrong, reason of edge that the act power of, or lost the wrhich deprived defendant has been act, doing from the prevent him to himself would enable guilty.” be found then he cannot previously forth, considering Instruc

As set court’s 38, unnecessary, 30 additional instructions were tions give instructions was therefore the failure to further not error. group The third sets forth appeal to this court to abandon M’Naghten Rule, broadened this court to include the theory impulse” of “irresistible persons, as to insane and to adopt Rule”, either the so-called “Durham see Durham v. Unit- States, U.S.App.D.C. 228, ed 214 F.2d 45 A.L.R.2d 1430, or the “Currens Rule” as set forth in United States v. Cir., Currens, 290 F.2d in this case and to all future cases insanity where the defense of has been raised. case,

In the instant considerable evidence was introduced sanity regarding the defendant and mental condition. testimony psychiatrists, The evidence consisted institu- military reports pre- tional medical records. This evidence jury sanity question insanity, they sented to the finally patterned instructions determined. The were after State 169, supra, Peel, subsequent 59 P. Mont. eases. subject, views on great divergence

Admitting desirability any putting to rest recognizing opinion position, the author of this has court’s read to this legal publications, medical and articles scientific numerous commonly M’Naghten Rule, to the called Dur- journals relating 298 Rule, proposed by the American

ham Rule and that Currens authority to substan- Law Institute. There is an abundance In addi- any any compromise between them. tiate of the Rules or have opinions concerning the Rules tion, legal the numerous carefully been considered. in its announcement the Durham case

Since rule the adopted in single adhering M’Nagh has not been a state to the Rule, expressly reject ten the most recent decisions both proposed the Durham Rule and the American Law Institute rule, M’Naghten, (Okl.1963), v. and reaffirm Dare State 339; White, (Wash.1962), 942; P.2d v. 374 P.2d Chase State 997; Alaska, (Ala.1962), 369 v. Com v. P.2d Newsome State Poulson, 14 monwealth, 174; (Ky.1963), 366 S.W.2d State 93. we not controlled 2d 38 P.2d While are Utah jurisdictions question on the number of court cases of other present day they persuasive under do that are most we believe circumstances. M’

Here the court’s instructions embodied both the Naghten Rule as broadened this court’s inclusion of the so- impulse” adequately protected “irresistible test and called authorities, Having legal defendant. reviewed the both scientific, unwilling we are at this time to abandon the estab position having nothing of this court found better that lished justify change. a would set forth

The fourth consideration as error is that the court permitting hypothetical in the state to ask a erred question of in form in Hughett Dr. Bruce which it did. as follows:

reads “Q. Assuming history that the medical person of the to be you by Lloyd Noble, given J. assuming as it was that the fol- relating true, to the lowing namely, February facts crime be Hardin, Montana, 16th, man drove to employment; to seek leaving Hardin enroute to Billings, Montana, while that he say, I opinion, should an formed intent kill formed person; Billings; and another that he comes his ex-wife crime; that from scene his a half parks car block he places outside question, to the house gun he carries house; when entered he door; that he enters people clearly, coherently to the house, sits and talks he gun, house, picks up the from steps he house; subsequently strug- is a that there shooting; and starts house re-enters gun was taken incident, in which gle in of this the course I out authorities. to the away him, then surrenders from left And with. you that are perhaps the some remarks familiar based on question, to this with relation those also assume facts you true, have an be facts to facts, those assuming these able to dis- person would be a or not such opinion as to whether commis- time of the wrong at the right and tinguish between the sion of act! object Symmes: you answer, going I am to

“Mr. Before form, any improper in state facts which ground it is doesn’t the consideration, asking doctor and he is to take into he can words, none of us opinion upon his own his facts base know about the— you may Overruled, answer.

“The Court: “A. I think he should have been right able to lmow from wrong, should have been able to refrain from wrong right.” adhere it hypothe

While is settled law in Montana that questions tical must be framed each to support side its fairly reflecting theory of the all facts, case the vital this court Crowe, 174, 579, in State v. 39 Mont. 102 P. held that “The au appear practically be in holding thorities unanimous that a hypothetical question need not embrace all of the evidence re specting the mental defendant’s condition.” witness, qualified expert may give

A medical upon opinion knowledge his based obtained facts observed examining Underhill’s, treating him in or accused. Crimi ed.), 461. Evidence, (5th nal § any defendant’s contention that “doesn’t state

facts which he can consideration, take into asking and he is opinion doctor to upon base words, facts that in his own none of us know about” is entirely not Hughett accurate. Dr. had interviewed defendant three times had him available to his medical appear records. It objection would does go to his lack of knowledge, but alleged to the doctor’s knowledge not jury. communicated to the All of the facts set hypothetical forth question previously had been testified directly, through possibly medical records unless minor unimportant. facts which are hypothetical The fairness of a question largely resting matter in the discretion of the trial court, rulings whose ground thereon will not be a for reversal showing the absence of a of an abuse of discretion. While not model for future law students the court did not properly permitted abuse its discretion and ques- Peel, 358, 169, tion. State v. 23 Mont. 59 P. supra; State Crowe, 174, 579; 39 Mont. 102 P. City Butte, Townsend v. 969; etc., 41 Mont. Light, P. De Sandro v. Missoula Co., 641; Rivenburgh, 52 Mont. 157 P. State v. 11 Utah 689; Grapper (Missouri App. 1959), 2d 355 P.2d State v. 633. S.W.2d

Concerning defendant’s grouping alleged fifth error give Avithreference to the court’s failure to defendant’s Instruc-. 44, covering tion No. what the court could do in the event de was guilty, inquiring fendant found not into defendant’s sanity, we find the court did not err. This instruction antici pated by prosecutor comment the in his summation. In State Simpson, 109 Mont. 95 P.2d this court held that prosecutor it was not error for the to comment in argu final ment on the fact that defendant acquitted if would walk out So, the court a free man. prosecutor even if the had in his comment, summation made such a and the record does not dis did, close that he the court’s refusal of the instruction would have been correct under the existing opinion of this court. No ruling on the court’s prejudicial having the error been shown was instruction correct.

Beferring grouping alleged now to the sixth error made by concerning the defendant two confessions introduced dur- ing trial. first the The confession hospital, was taken at the approximately one hour after shooting, the where the defend- ant had been taken to be treated for wounds received around his only head and bullet wound in his arm. The evidence submitted concerning produced treatment and medication was by police officers, the State’s Two witness. Aukshun and Eal- wein, apprehension were involved in the of the defendant and hospital took him to the to have wounds his treated. Aukshun later saw him in emergency room was Kilwein with him for about three hours. Neither these officers testified wounds, to who cared for the defendant’s what treatment and if given, any used, was sedative was it what kind was. witness, Ness, third State’s Lt. was the man who took

both confessions from the via defendant and an- swer method and he wrote out the defendant’s statement in a fashion, submitting narrative it each time to the defendant for signature. testimony, is no There nor does the defendant any allege irregularities in the methods used Ness Lt. in se- curing the statement. The defendant warned each time rights, promises made, of his constitutional no were no threats made and party. were the statements were witnessed a third they completely as the us So far record before shows were vol- untary part on After being defendant. reduced to writing the first statement was handed to the defendant who reading it, according to Lt. started but Ness handed back eyes “You because his to Lt. Ness and said: read it” were either hazy. signed Ness read blurry Lt. it and defendant it. defendant, you by counsel for “Do Lt. Ness was asked know drugs or not defendant was under whether at time?” with floor replied, “I cheeked the head nurse He approximately had received some sedation was advised he there confession my As to this first an hour interview.” before as to what or the defendant showing was no as to who treated to any hospital records submitted used, sedation was nor were that the Lt. testified Ness show what had been administered. to under- appeared rational, cooperative, and was defendant and his answers done being of what was stand the nature questions logical. were days later at the

Concerning second confession taken two that in dis- hospital, gave taking Lt. same Ness the reason county attorney’s office cussing the first confession with the get desirable to they of the sedation made it question felt the hospital to talk to he went to the the second confession. When him and defendant, recognized Lt. Ness said the defendant had and found out no sedation with the nurse that he checked half and a within an hour to the defendant been administered defendant properly warned the longer; again thaat he com- that was more took a statement rights, again he Ness re- After Lt. the first statement. plete detailed than it aloud read writing, the defendant duced the statement To the introduc- signed it. witnesses and Lt. Ness and two objected “On for defendant counsel the first confession tion of process pro- due of the deprives the defendant ground it was overruled. He Amendment.” Fourteenth visions the same he made confession the second introduction of To the objection and was overruled. admissibility was of a confession which question influ- allegedly under the while the defendant

obtained mat- wound is a treatment of a given for the of a sedative ence However, numerous other in this court. impression of first ter may guid- to for be looked have decided this states ance. Berberick, 38 Mont. P. held State

This court writing, down in not in con- confession taken but 209, that a by signing adopting language it and its language, exact fessor’s his own. makes

303 first ruling out the authority in for his cites The defendant 869, 13 So.2d Graffam, 202 La. v. cases. State confession three Reck 233, and 246, State, 51 So.2d 255 Ala 249; v. Edwardson All three 948. 6 L.Ed.2d 1541, 433, 81 Pate, S.Ct. 367 U.S. v. and are facts on the clearly distinguishable cases are of these supra, the Graffam, v. In in this case. State controlling not introduced was and evidence seriously wounded defendant was The of the confession. the time morphine at under that he was the confession State, supra, show that v. in Edwardson facts interrogation of repeated constant coercion came after given had city physician ill and to whom was woman who Pate, supra, the v. In Reck pain. narcotics to alleviate in case question each “The said: Supreme Court States United con- the time he at was overborne will defendant’s is whether a fessed.” first to

As confession doubt existed as or not was sedation so the second con whether defendant under There is no contradiction between the fession was obtained. only confession. The difference is that the first and the second than first. The authorities cited second is more detailed administered, with cases which a narcotic was defendant deal here, only given. is where a sedative was no such raised that some sedative had been administered Accepting the fact ipso the first confession does within an hour before facto necessary element to determine inadmissible. make voluntarily it was made at the time of the confession whether Waack, Cal.App.2d 253, People 100 will. v. and of his free See Cal.App.2d 407, People Grasso, 142 298 P.2d 486; v. 223 P.2d 628; 336 P.2d Peo Russo, App.2d 131; People v. Cal. Cal.Rptr. 366 P.2d 57. Lane, ple 56 Cal.2d arguendo Assuming that the first confession was ob subject sedation, was tained while defendant there are no appear which do not facts therein related the second con clearly read, shows fession, which the record defendant under If the foundation the admission signed. stood merely insufficient, first confession be its admission deemed re- perceive any prejudice fail that could cumulative we sult to defendant in of his later or second confession. view in a summation, weight

In of the evidence jury in the first instance. criminal matter is for the to determine justify verdict, reasonably If this court the circumstances jury every which the could have must assume existence of fact reasonably reach its verdict. deduced from all the evidence to such as this complicated trial,

During the course of a errors. It is was, heat of trial make certain both sides or not the errors duty this court to ascertain whether may only upon a case be returned prejudicial for such errors are carefully Having examined court for retrial. to the district by defendant of set forth the alleged specification error each judgment of the and affirm the prejudicial find error we no court. district MR. T. HARRISON JAMES

MR. JUSTICE CHIEF concur. CASTLES JUSTICE ADAIR:

MR. JUSTICE in fore- is said in all that but not I in the result concur majority opinion. going DOYLE:

MR. JUSTICE

I dissent. majority opinion would seem in reasoning Perusal of theory of law hoary frequently misused to turn on of stare decisis.

Analysis Montana in this of the record decisions sanctuary deprives majority legal of of that haven of case justification for the decision herein. very inception appellate of nation,

From the courts in this miscarriage justice a substantial and fabulous when of occur- facetiously red, would refer to the Bar such decision “as the conjecture.” of the court of ultimate guess best action, on the but of ordinarily is a wise rule Stare decisis universal, command. contrary not a exorable it is not, single exception, It without command that we does problem passing err again when we are confronted with the of theory obviously steeped in is antiquity some law erroneous, presented many is here. facts of varied physchiatry, began both with the rule law and modern which case, Finnelly, M’Naghten Eng.Rep. & Clark (Ch.1843), applied in instant cannot now cause. be

The better modern scientific forces and the force of better reasoning, process cognizant error, trial so salient in our sciences, advanced knowledge appropriate medical is also in judicial function. Justice demands that recognized. fact be

’ Our government potent, state omnipresent is teacher. For good ill, teaches people the whole example. Crime, as such, contagious. If the State lawbreaker, becomes a it breeds law; every it invites contempt man to become a law unto himself; anarchy. it invites declare, To as here that in the ad- justice justifies ministration the end the means—to declare may that the ignore State procure the obvious to the conviction mentally incompetent one would bring terrible retribution to all the citizens of greatest dangers justice Montana. The the courts of this lurk in State the insidious encroachment zeal, men of but well-meaning, without understanding.

The conviction of the defendant the trial resulted court partially contradictory psy- from the of evidence the State’s appear chiatrist. There will in this dissent further comment on experts. these so-called “expert” appeared Century

The witness in late 18th in English Jurisprudence. they Prior to that time were deemed not necessary fulfilled, perhaps as their was function not too ade- by jurors, quately impaneled pur- were express who pose knowledge cases, of their in using particular being own by Thus, knowledge. selected reason of that a of the 306 tan- by jury of was a

quality litigation decided of leather ners. who can psychiatric of assessors cannot be a board

Jurors more on basis which doctor witnesses decide between to correct; position evaluate medically they are not a of it. proficiency or lack experts for marks of grade three experts, motives jury never of the The aware stand, the witness did not take other of whom testified 1962, trig- 20, Freeman, of June Dr. whose letter being this gered this trial. find jury be to

It has well said that a cannot instructed been doubt, do this beyond as to guilty all reasonable a defendant certainty God belong can to a which arrogate would man alone.

Conversely, jury completely if a is not as to the instructed ease, painted ship a law of the twelve citizens on become departure painted point of both a and des- legal ocean devoid tination, by any compass legal navigational unaided aids or speculation, courses, ignorance, about winds of tossed conjecture suspicion. they arrive in harbor Ultimately oper- by everyone, “wrong which of erroneous verdict” abhorred paramount right his deprive the accused of constitutional ates entitled, the law”. to which he is “Justice under many pos- Having years, been law Montana for what jurors, would have resulted in minds sible confusion should, given, proposed had the court as he trial defendant’s 28, quoted page majority opinion. 14 of Instruction No. Peel, 169; P. Keerl, 23 Mont. State v. 29 Mont. State Narich, 362; 75 P. State v. Mont. P.2d 477. spent twenty jury agonizing returning hours their who “Guilty” Instruction, above were entitled this verdict of fact, beyond requirement was the clarion and strident mentally confused defendant be denied basic that this trial the refusal of this vital statement of fair right law. Montana jur- of obligation present changed

After law had to the evidence, it ors, them as presented to triers of the facts sole both one or expert necessary witnesses then became to call sides of the cause. honest, duty “expert” give

It was and forth- of an to right opinion, as presented, psychiatric here on medical and they subjects, presumed qualifications have to of which are to pronounce.

The a monograph author of on the “Law of Evidence” makes “Expert this statement. tendency espouse witnesses a have party by they the cause of the whom are called.” This state- ment especially seems Dr. Hughett, true of testifying who after Lloyd the first instance that incompetent, J. Noble was then completely reversed immovably himself became tenacious competent. that the defendant was machinery law, such as is recited majority in the

opinion is tribute to civilized restraint of our knowledge psychiatry, but contrary, on represents melancholy re- year version to 1843. It is repugnant thought day our modern knowledge and instincts. psychiatrists,

Two Dr. Donald L. Bryce Harr and Dr. G. Hughett found the mentally defendant incompetent, by letters in writing May 4, May dated 1962 and again under Bryce oath. Dr. G. Hughett testified the had defendant a dis- mind, psychiatrist ordered he was the for the State and a partner of Dr. Harr.

“PSYCHIATRIC EXAMINATION Noble, Lloyd “Name: Sex: Age: years Male

“Date Exam 5-4-62 psychiatric “An additional evaluation was made on date patient’s present to determine the preparation mental status in May hearing for a scheduled District Court 7. Mr. Noble hearing was aware of the scheduled and stated that he is in having a hearing get straightened favor matters out up’. He wants ‘them’ to know things ‘clear there were reasons He said he did. had to do what for what he did that he be how he would crazy’, he can understand that he is ‘not but By the term under. mentally pressure ill he has been from the He being ‘nervous’. referring ill to mentally patient was he had pressures which explain on to some then went tough and smart is ‘That Maiehels woman saying, felt with crazy. I had her covered is shrewd, but she is the one who to going gun. She for a loaded gun that and she called up you if their break do that kill Those homosexuals will me. stay away Bosa to force gun to picnic. I think she used crazy queers Those are shrewd from me and the children. experience had while point patient an he (at this described apparently made a homosexual some man in the service when already through 5 or 6 him). gone had approach toward She that was sick.’ He then ex- finally got one women before she ‘mentally plained that his wife was.more ill’ than he was after ovary. mumps surgery to she had the remove patient going hospital not mind to a if that said that he did best, added that is was what was decided was but he there still valley Shirley being in this with his here and with Mai- danger apt happen something still is to being ehels here. He feels that danger valley. that would be of to the entire again He added crazy is not and that he knows that I he can understand talking explained he is about. He related that he what had this my Bryce (referring to an interview with Dr. Hugh- ‘friend’ previous day). on the ett patient’s ideation and behavior at this time

“The continued thinking omnipotence of his own to demonstrate delusional powers. general happening is in of what is special He aware misinterprets significance him, but he of circum- around appear accept his situation. He does not the seri- stances in he is he of the situation which involved because feels ousness hap- explanation everything for that has adequate has that he special powers having everything to see that pened, as well way wants it to. At the same time there out the he will turn patient’s appears depression be some with the underlying happens earing regard not to a to what degree reasonable ‘crazy’ this openly though to him. He he even denies that is upon rely un- might be considered as a which he could defense present der his circumstances. presence my impression findings

“It is that these indicate the reaction, type, patient schizophrenic paranoid of a with comprehending adequately the seriousness of the situation Hospitalization for ill- which he is involved. treatment patient has ness recommended. It should be noted that the disability Admin- service connected with the Veterans 30% diagnosis psychoneurosis, istration so that he would for the Hos- eligible hospitalization be for in Veterans Administration pital any psychiatric condition. Han-, Donald L. M.D.”

“/s/ Exactly forty-three days later, Freeman, charge Dr. Hospital the State Springs Mental at Warm wrote follow- ing Attorney County County: letter to the of Yellowstone Speare “Mr. William J.

“County Attorney County

“Yellowstone

“Billings, Montana NOBLE,

“Re: Lloyd James Speare: “Dear Mr. patient

“This entered Montana Hospital May State 10, 1962, pursuant District Court Order Thirteenth Judicial District, care, custody for and treatment until restored to com- petency and declared sane and able to stand trial. patient, 1, 1962,

“The on June in hospi- re-evaluated a tal meeting clinic and it was recommended he be returned to jurisdiction of the court. again

“He was examined undersigned, June opinion with also an recovered, that he has competent and is my opinion to stand trial. It is further that he is parti- able to cipate in his defense. of Yel- you please request, arrange for the sheriff

“Would or County custody at his convenience? to take him into lowstone yours,

“Sincerely Freeman, M.D. John G. “/s/ “Superintendent JGF/'mlm County

ce: Yellowstone Sheriff

Dr. Gracia” history of mental confu- in mind the authenticated Keeping years is recited for hereafter nineteen sion of the defendant curiosity treatment is as to the exact opinion, aroused this conclusions reached his by which Dr. Freeman and method days. It could few short competency, these the defendant’s physiognomy, application achieved only have been medically impossible necromancy. It was and is phrenology examine, and cure the anyone treat else to Dr. Freeman or degree period of time and attain this short within defendant blandly letter, refute the competency in his stated years psychiatrists over opinions competent unbiased 1944. since Drs. Free- fairly opinion if final stated that

It can be again true, world has reverted then the Hughett man and experience of personal of miracles. Predicated age to the motive, realist, writer, finds years, being many implication. possesses theological no page in Mental and the at Dr. Glueck Disorder Criminal Law 354 states: recovery schizophrenic extremely

“The rate cases is low. may It lead to (schizophrenia) any almost conceivable crime.” Abnormality Dr. in Mental MacNiven page Crime at states: very

“Schizophrenia a serious In majority is illness. of recovery many not does occur and cases the cases end in a profound dementia.” state statutory prosecution that is law neither the

It nor defense dis- the record Yet call all of their witnesses. required is during the trial present court closes that Dr. Freeman Why? prosecution witness. a was not called as but history bring focus de- To into the of the reader of the Lloyd Noble, living person, pawn as fendant, James history expert psychiatric differences, personal insofar pertinent will be recited. Dillon, Montana, defendant was born at on November 5, 1942, 1921. On November he enlisted in United States Corps Butte, Montana, interesting Marine at is to note that he following: certified to the hereby certify

“I I have never subject fits, been faint- spells, ing or a victim of bed-wetting.” participated He in the battle of Tarawa and Saipan the campaigns of and Okinawa. It is noteworthy that defendant’s difficulty mental commenced immediately after his experience. first combat The defendant being honorably after discharged from Corps the Marine re- turned to his near Harrison, Montana, ranch where he married Rosa Noble and three children were born to the issue of this marriage.

In June of the defendant and the deceased di- were part provided vorced and a deceased, decree that the Noble, Rosa would have the children for nine months deceased, defendant three months. The Noble, Rosa never exer- legal right care, to have custody cised possession children, contrary of the three but on the moved with a Shir- ley rampant Maichel and this is record with allusions unnatural, Lesbian deceased, attachment between the Rosa No- ble, Shirley Maichel. clarify psychiatric appear

To definitions that in this record, is made reference to the American Illustrated Medical (21st ed.), Dictionary, written Dr. W. A. Newman Dorland. and is “A The first definition remission defined as symptoms disease; diminution or an abatement of a also during period which diminution occurs.” There is in the where- remission psychiatry many cases of documented annals of any period as during this person is as normal in the confused other individual. “Bleu- schizophrenia. that of to be defined is

The next word according to his inter- which, praecox for dementia ler’s term func- mental cleavage or fissuration pretation presents tions.” term schizophrenia: a “Resembling as, defined is

Schizoid type introspective unsocial, shut-in, by Bleuler applied type resemb- physical by to the Kretschmer personality and praecox.” dementia persons with ling that generic “A des- means the word dementia praecox, Dementia for á praecox is the “term for deterioration” and ignation mental recog- psychoses psychogenic origin, often group of large infrequently during shortly but not after adolescence nized or disorientation’, maturity. characteristics are The chief later personality.” reality, splitting of the with loss of contact slowly Paranoia, chronic, progressive “A mental disorder disorder) by development am- (personality characterized systematized persecution delusions of suspicions bitions or into up logical in a form.” which are built grandeur and Delusion, “A false which belief cannot rea- be corrected is and logically by argu- son. It founded cannot be corrected persuasion patient’s ment or even the evidence of the own senses.” “A persecution, part morbid belief on the of a

Delusion of patient mistreated, slandered, injured by being he enemies.” secret

Hallucination, “A perception upon not founded ob- sense auditory hearing jective reality”, thus an hallucination is “the sounds.” of unreal “Formerly generic any name mental disorder.

Psychosis, far-reaching deeper, prolonged more be- Specifically manic-depres- praecox such as dementia disorders havior sive.” psychosis, essentially benign, “An affective depressive,

Manic swings, instability, striking mood chiefly by emotional marked manic, depressed, tendency in the and a to recurrence. It is seen types.” circular, mixed, perplexed stuporous upon It is now incumbent the writer to set in some de- out history psychiatric tail beginning the defendant with Hospital January admission to the Marine at the age just subsequent 22of to the Battle of Tarawa. The de- Hospital period in fendant was the Marine for a of nineteen days “psychosis, depressive.” diagnosis and the was manic .Lt. psychiatrist Navy, a Vaughan, Comdr. R. G. of the United States is going elicited from the defendant these delusions “There government starting be an overthrow of our as a race riot from pictures plans, going or four or five other its cen- motion be capitalist Hollywood they in tered a Montana and a are — Army, Navy and Marines. There is noth- going to Imock out the perpetual Every plant magnet, circuit, has a ing like motion. a Mexico, prophet iron etc. Believes he is a and fore- mountains works, future, always how nature has found tells the studied rambling, out what makes livestock mean. He is voluble hallucination, persecution.” Again, denies delusions of denies day flight shows [meaning this man “On the same Noble] January 15, 1944, past increasing two weeks.” On ideas for Hospital and further 75th he was transferred to the Station Hospital. Naval transferred to the United States On the defendant submitted himself volun- June Denver, tarily Airy Colorado, at he to Mt. Sanitarium where diagnosis six shock treatments. The at that underwent electric schizophrenia. Dr. institution was Carlson the Sanitarium story from the defendant. of mental confusion elicited hard, working very getting up “He has been daylight at has working until dark. He been worried about the world situa- figured out. The Russians got going tion. ‘I’ve are to hit us They July They can burn fields 27th. then. can knock in hours. Their attack will us out twelve start at 11:00 P.M. a tunnel prophet. There is I’m a Hawaii. in predicted I stuff ” America.’ through North runs that Mexico

from a volcano pat- in a “everything is that Dr. Carlson stated to further He He two east. two, south two two, they in section are tern Joining at service in them. have two that to rooms has been wave, in a second was corps. His brother second 20; survey mark geodetic about He talks hour. in the second died in it.” of two’s has a number which ap- concisely it, it would disclose does the record While Fort Harrison examined at had been pear the defendant his last examina- purposes and Hospital rating for Veteran’s was receiv- May 2, and he purpose was on for that tion phychoneurotic disability connected ing a service 30% to this himself 1959, he submitted September 8, reaction. On by Dr. Leo S. Crow- and was examined for admission hospital Crowley made these Dr. institution. ley, psychiatrist at observations. answers and volunteered in the

“His statements contain much way quite vague of irrelevant detail. Sometimes he is responding questions. says to direct evasive He he has had earthquakes. severe nervous difficulties since the It recent badly is almost as seems that he shaken as the Madison Can- previous yon. says he has had disaster follow him under He says and in different localities. He that each circumstances bodily escaped danger injury from others time he has when talks, things quite about becomes have not. When he these he says is and circumstantial. He he sure that further involved He going to occur the Western United States. disasters are going to be an immense tidal the next disaster thinks completely. says destroy He the Pacific Coast which will wave dreams, things going happen through about these knows he practical knowledge experi- through read he has things Masonry the Bible and into his injects much from He ence. * * * experiences feelings. his He feels speech about thought earthquakes so much about the he has worried He himself. it or for what to do about not know that he does says He figure ‘two.’ to the up numerous references brings now in on who went family; a brother in his child he is the second him killed; it took was move on Iwo Jima assault the second Iwo was buried at Jima hemorrhage; he die from two hours to actually obsessive—com- He is time Bozeman. and a second * * ® great He attaches two. the number pulsive regarding * * * form- triangle triangle also. to the significance [Noble], the veteran between which exists by an association ed other relationship with the wife, woman. The and another his wife. she and but between and she is not between he woman together almost are other -woman and the says that his wife He may them relationship between suspects the constantly and he * * * in nature. physically be homosexual reaction, type, in Schizophrenic undifferentiated “Diagnosis. psychoneurotic remission, formerly diagnosed reaction partial * * * Incapacity: severe.” anxiety and neurasthenia. seeking Prior to the time admission to Fort Harrison Vet- Hospital, erans Administration the defendant was admitted Hospital February 10, 1958, Billings at to St. Vincent discharged on March 1958. While in this institution was electro-sleep under insulin. This treatment he received twelve authority type of treatment medical is a drastic according to given he was confusion. While at St. Vincents for mental neuropsychiatric reaction psycopath with a diagnosis final of a hospitalization diagnosis of depression and the with reactive was for the defendant. recommended 1, 1961, June the defendant submitted himself Dr. H.

On Lewis, Ryle placed Hospital who him in St. Patricks in Mis- soula, he four Montana. There underwent electric shock treat- hospital and three ments while thereafter on June 14, 16, diagnosis Dr. Lewis made a of 1961. schizoid reac- tion, Dr. Lewis further stated that the defendant —recurrent. defintely psychotic. Chemodurow, be made of Dr. Theodore

Mention should psychiatrist residing Billings, his who saw defendant Sep- professional capacity September 10, and between October, 10, 1959, saw the de- tember Dr. Chemodurow times, and the result of this exam- or fourteen as fendant twelve months, perhaps nearly two extending period ination over opinion, defendant Dr. that in his Chemodurow testified testi- Noble, paranoid schizophrenic. Doctor further was Mrs. with Maichel. The fied he discussed the defendant that question: Doctor asked this was opin- your

“Q. she, [meaning ask did And Mrs. Maichel] Yes, A. did. dangerous? she Lloyd as was ion to whether opinion? A. “Q. you Yes. give Did them dan- I told he was “Q. you say to them? A. them did What relationship. If he didn’t stop they should gerous, and that but worry about as anything to together wasn’t see them there be- they should I them in no terms told uncertain he told them was end of this if no said, stating that there he lieve what relationship going on. continued, danger-

“Q. relationship if And that this They repeated ous, right? right. That is what he is that A. I said, recall, He he would do agreed I with them. said and bodily one or both.” harm to either some kind testimony flatly denied, This Dr. Chemodurow was under oath, by Mrs. Maichel.

The Doctor was further asked question: this “Q. your opinion Yes. Would it be that at the time of this shooting, incident, killing or the defendant did not right wrong? know whether acts are A. time At the he * # * were wrong. did not know his acts “Q. right, your opinion, All it is time, that at this that he knowledge of his had no conscious acts at the home of the Mai- your Billings, opinion? is that ehels A. here Yes. you “Q. Doctor, can describe to me what impulse irresistible your understanding of it is? is? What A. Going back to the cooker, I example pressure say pres- of that would that with the up level, impulse (cid:127)sure built to a certain the ^resistible would explosion reaction; gets degree be the and the that once it to a explosion pressure happen except (cid:127)of nothing there is that can and disintegration of the container.

“Q. you That is what consider then impulse to be irresistible pressure in that light cooker. A. In example.” the of this majority opinion The can slight find in citing solace State v. Narich, 92 17, Mont. 477, P.2d which case quoting from Keerl, State v. 29 Mont. 75 P. admonished dis- the trict courts to make their jury instructions plain to the as simple possible. as quote Let us paragraph in entirety: its “ * * jury may determine the fact from the testi- mony it, adduced before no may matter what be the character insanity attributed to the defendant. This includes, of course, insane delusions and impulsesIn insane irresistible our opinion, the defendant in prejudiced no by manner the giving of the complained of, instruction in view of the other instructions of the given, court elaborating subject. In the trial of in future, such cases district courts are admon- ished to juries make their plain instructions to the as and sim- ple possible, as and to avoid numerous instructions on the sub- ject, many given too confusing are pur- serve no useful pose. given One or two in ordinary case should be suffi- cient.” 94-7201, (5),

Section E.C.M.1947, subd. reads: “When passed upon the instructions have been and settled by court, arguments jury before the of counsel to the begun, jury have charge writing, giving the court shall in in only such charge passed upon such instructions as are and settled at such In charging jury, settlement. shall give the court necessary them all matters law which thinks its in- rendering Emphasis supplied. in a verdict.” formation In Narich, State v. supra, gave court the identical in- struction which appears here as Instruction 38. The in court the Narich ease observed: “This instruction is somewhat con- with, and in must connection

fusing, but it be considered the sub- of, court on given light other instructions in the further instructed ject objection.” The court without defect, law, any insanity, case “that the criminal Narich incapable of rendering it en- weakness or disease the mind particular in- entertaining, its tertaining, preventing one of the elements stance, which constitutes the criminal intent gave twelve in the Narich ease every all, “In the court crime. insane insanity including covering the defense instructions in the impulses. The court delusions, and insane irresistible Mont, page further P. at case, page 24, 9 2d at Narich observed: given

“Returning now to a consideration the instructions al- jury on the of the defendant’s the court to the us, of insanity, principles law before leged with these settled jury the in this given to it will be that the instructions seen evidence, fairly present applicable to fully law the and the case alone, objec- 26, standing xoould be No. although instruction supplied. Emphasis tionable." cause, that gave

In the instant the trial court no instruction appears misleading would cure of law the statement the that instruction, contrary, 38. the next Instruction No. On the 39, No. reads as follows: you beyond are instructed if find

“You that a reasonable defendant, Noble, Lloyd wilfully, doubt James did unlawfully, premeditatedly, wrongfully, and with malice afore- Noble, you did kill Rosa at the of thought, find time such defendant, Lloyd Noble, killing the James was not insane as defined, you find elsewhere these instructions then must guilty degree.” of murder the first defendant only difficulty with instruction is the failure impulse. judge correctly trial to elsewhere define irresistible Rolla, 582, 523, court, In v. 21 Mont. 55 P. there State instructions, speaking on the stated: * * propositions when conflicting it is held that law upon point, given are a material one in- correct the other correct, judgment will be reversed. It cannot be assumed jury in such ease that the will follow the correct statement of court, general rule, give the law. The as a cannot all the law instruction, in a single the instructions must be therefore and, considered, they together; considered all when so must correctly law, without contradiction.” state

In Brooks, 146, State v. Mont. 57 P. the court said: principle, therefore, “The true prove is that the state must guilt beyond doubt, if, a reasonable upon the whole evi- dence, no matter whether the state or defendant offers such evidence, jury whether, have a reasonable doubt de- when deceased, insane, fendant killed the he was sane or it is their duty give the defendant the benefit the doubt and to ac- quit him.”

In view of foregoing, complete one is at loss to under- theory upon stand the which given Instruction No. 38 was jury in the instant cause without other curative and ex- planatory instructions, particularly an instruction on irre- impulse. sistible lengthy

This dissent is express written for purpose up pointing the fact that this was ordinary not an case and further the defendant’s offered Instruction No. 28 cover- ing impulse irresistible given was not and this case should be ground reversed on that if for no other reason.

Again adverting proposed to the defendant’s Instruction No. 28, in Espelin, the case of State 106 Mont. 76 P.2d this court stated: given

“The instructions length were of more than usual appear every phase to cover conceivable of the crime which charged. rule, the defendant was Under the established in whole, structions must be considered as a Russell v. Sunburst Co., Refining 998; Colbert, 83 Mont. 72 P. v. State 58 Mont. 145, and, considered, 194 P. so we think the instructions eminently fair to the defendant. When the instructions as a

320 v. exist. State does correctly law error state the whole 1038.” 146, 57 P. Brooks, 23 Mont. appears: statement this majority opinion, page 292 in the

At instruc- objected giving of the to the the defendant “While they proper restatement that are a he admits his brief tions so- explanation of the they further law, that needed but our any of his four impulse’ theory which one ‘irresistible called judge- The trial have corrected. proposed instructions would in- sufficient were above-quoted instructions held theory the ease.” this clude by strained reason- majority opinion page having at were ruled that instructions

ing concluded that the trial court page 511 impulse” then at include “irresistible sufficient by making this state- highly matter aggravates this debatable ment: M’Naghten

“Here the court’s instructions embodied both the as this court’s inclusion of the Rule broadened so-called ‘irre- adequately protected impulse’ test and the defendant.” sistible jury the to this gave trial court 51 instructions While the insanity was jury relating to only given the two instructions 38; No. neither 30 and court’s Instruction Instruction No. court’s any con- place at their instructions contained of these two of the impulse” or definition the words “irresistible text Keerl, 169; v. Peel, 23 Mont. 59 P. State same. See State 17, P.2d Narich, Mont. 362; 508, 75 P. State v. 29 Mont. 477. expounded Doctor question hypothetical to the

Advert appears witness, which prosecution Bryce Ilughett, again quote however, important to opinion. It is majority in the question. part you are perhaps remarks “I out some familiar left also,assume questionT in relation to those And with. facts true, have to be facts, assuming those facts on these based be person would or not such to whether opinion you 321 distinguish right wrong at the time of the able to between Emphasis supplied. commission of the act?” jury The all facts in evidence were entitled to know upon opinion. expert which the State’s arrived at his 174, majority rely upon Crowe, 39 102 State v. Mont. practically 579, recite, appear P. to be “The authorities question in not holding hypothetical unanimous that a need em- respecting brace all of defendant’s mental condi- the evidence tion.” majority opinion

What incorporate did not in State v. Crowe, supra, holding was this of the court:

“In putting hypothetical question to expert they had right a established, assume as for the time being, all the facts tending evidence support theory. their It was a legitimate evidence, inference from the theory, tuider this the de- fendant retained grudge against deceased, that, prompted by a gratify desire to feelings his revenge, lay he in wait opportunity for the to strike the fatal blow. It was for jury say,- considering all the evidence introduced after by sides, both facts, whether the thus assumed as established for being, time really established, ivere opin- whether the ion of worthy the witness was of consideration.” might

It be observed that State v. Crowe was reversed and remanded this court and additionally that opin- the Crowe ion cites the case of Peel, State v. 23 358, Mont. 59 P. 169. The statement, that hypothetical question need not embrace all respecting evidence defendant’s condition, appears mental Peel, State v. supra, in the following language:

“Counsel compelled were not to so frame their to embrace in it a statement of all the elements of the law of insanity.” Emphasis supplied.

In Underhill’s Criminal Evidence, (5th ed.) 461, we find § this statement: opinion

“The expressed which expert posi- must be tive in form and If character. he cannot or will give such opinion conjec- his that the accused was sane or donbts insane, rejected.”

tures that he was must be Jackson, dissenting opinion People In the ease 180 N.E.2d it was said: N.Y.2d N.Y.S.2d objection point at this motion mistrial “Defendant’s Thereafter, in his improperly and denied. were overruled receiving of this charge, compounded error testi- the court the defendant mony by charging Dr. Winkler ‘examined the that and shortly alleged after crime found the on three occasions charges of the capable understanding the nature that he was of wholly irrelevant, and issue proceed with the defense’—an and excep- no by The fact that admissibility statute. its forbidden preclude us charge does not erroneous tion was taken this capital in this case. considering prejudicial its effect from errors, foregoing consisting “In the of ex- view of serious the highly and evidence and the allowance of inadmissible clusion of respect major issue in the prejudicial testimony with insanity, unnecessary for it is us to alleged ease—defendant’s testimony inconsistency Dr. and of Winkler’s discuss the clear by us defendant. urged upon other errors judgment “The of should be new conviction reversed trial ordered.” early 1, 1902,

As as December in the case Carpen- of Raub v. ter, 72, 187 U.S. 23 S.Ct. 47 L.Ed. the United States Supreme Court held as follows: questions:

“He then the following asked “ ‘Doctor, you any opinion, your have formed from uncle’s general condition health the conditions disclosed his you investigation, brain this all know him at about from his yourself, what mind was?’ condition portion question opin- “To which called for an that you your- ‘all him from witness from that know about ion objected ground on the that no caveatees sufficient self’ the portion question, that laid for that basis had been particular upon in should first be adduced. relied the facts preserved objection and caveators The court sustained exception. did court appeals that the trial with the court of agree

“We objectionable, question portion of the holding not err been properly have could not as framed and, so, question if left free caveators were propounded, though be allowed to Clearly, opin- omitted. objectionable words put it with was inadmis- not disclose he did ion the witness from facts than what other the deceased anything about If he knew sible. conclusion, that arriving at a him stated, which aided had he particular In developed. have been knowledge should was no which there for the existence assumed of facts in the evidence.” foundation Evidence, ed.) (5th Criminal

Again from Underhill’s § following: we find the

<f# # # eXpert f0r appointed, t2ie the state is or who who requested attorney the prosecuting to examine the accused purpose ascertaining sanity, should him- conduct impartial self during manner the examination. fair purpose He need not tell the accused the of the examination so, asking open but the fact that he does the be accused to him, anything free with but that him he need not tell that would him incriminate does not exclude the evidence secured the expert. promise part a is on Such statement not a the testify accused, physician against will not the and he that he him, may testify any by him or to to fact ascertained admitted has not the accused that his statements though even he warned jury may him. The against be used made on the examination report of examiners to the effect are never concluded is of such examiners accused is insane. The evidence jury.” Em- credibility is merely experts of and its phasis supplied. jury cause, they

Unless the were mind readers in the instant possibly Bryce could not know the remarks Hughett that Dr. with, perhaps arriving familiar opinion. at his second S. by Manfred Physehiatry Law

In a titled and the volume Supreme of Bench Guttmacher, for the medical officer Chief page 406. Baltimore, following at Maryland, we find the legal M’Naghten “The and scientific soundness of the Case subject every has of Almost Rule been the endless debate. subjected psychiatric criti- phrase legal has been to both Psychiatrically important criticisms that have cism. the most in- questions and answers are (1) been advanced are that the psychosis by delu- only cases of characterized tended cover case judges questions referred to the sion-—-the knew that fairly individual, circum- paranoid with M’Naghten, premised upon system; (2) the answers were scribed delusional remotely only conform which psychopathological notions conceptions; (3) concepts ‘right’ day present psychiatric easily disorder cannot ‘wrong’ belong to ethics—mental knowledge.” influence on ethical interpreted in of its be terms critics, present day phychiatrie most vocal of One Gregory Zilboorg, recently Dr. said in an address: psychiatrist “To force a to talk in ability terms of to distin- guish right wrong between legal responsibility and of is openly frankly —let us admit him force to violate the —to Hippocratic Oath, even to violate the oath he takes a wit- nothing truth, ness to tell the truth and but the him to force perjure justice. else, himself for the sake of For what if not perjury, clinician, speaks if a of right wrong, and criminal responsibility, and understanding of the nature and the committed, he, psychiatrist, criminal act when quality really absolutely they nothing things, knows about such when are legal presented assumptions and to him terms of a hypothetical psychiatry hypothetical question, * ^[*] based *. It immoral, paradoxical quite obvious that the situation has be- past twenty- and more acute the course come more psycho- during have learned more about years, which we five previous century a half.” during pathology than Baldi, (3rd Cir., 1951), ex rel. Smith In States United Appeals, Court 3rd Circuit Biggs, F.2d Justice Chief dis- the court two other members for himself and speaking psy- requires the law, it case, “The when senting in this said: capable is opinion the accused in his to whether chiatrist state test psychiatrist to compels the knowing wrong, from right recogniz- no has almost concept which guilt or innocence reality.” able verba majority opinion Jiaec in the sets out instant case like to would

the court’s Instruction No. 38 this author quote part the last of that Instruction. «# * * that at the time of the commission of such crimes wrong defendant knew it was to commit such crimes mentally capable of to choosing either do or not to do the

act or constituting acts such crimes and of governing his con- choice, duct accordance with such it your duty then is under guilty, law to him though you even should from believe find the evidence that at the time of the commission of the crime entirely perfectly he was not sane.”

This substantially instruction is the M’Naghten Rule, and very its phraseology the trial jury court tells the to find this guilty, defendant even though he be insane. A fair reading of instruction, above-quoted, compels one arrive at that final conclusion. again emphasize

To the M’Naghten Rule is a matter of social policy, legally narrow, too is medically unsound. In the cause, instant a fair instruction to the triers fact, namely jury, phrased should be approximate language. “A person criminally responsible is not for an act if at the act, time of the commission of such as a substantial consequence disorder, adequate mental he did not have capacity con- requirements form his conduct of the law which he is alleged to have violated.” suggested substantially

This instruction the instruction given propounded rule and the in United (3rd States v. Currens Cir., 1961), 290 F.2d 751.

326 Dis- Appeals from the 1954, Court of

In United States the App. States, in 94 U.S. Columbia, of Durham United trict new 1430, a 228, 862, A.L.R.2d enunciated 214 F.2d 45 D.C. if criminally responsible is not rule, which is “an that accused or mental of disease product the mental his unlawful act was defect.” adoption

The author does not the of Durham advocate the Montana, in not critical of valid- Rule while the structural itself, operation ity of the test is concern as to the there judicial applied. which test is In rules of evidence under the Columbia, rais- District defendant has the burden of of the sanity in ing producing the issue of there “some evidence that necessary such quantum of evidence to raise regard” evi- has “some slight. an issue After the defense introduced prosecution prove insanity, of shifts to the dence” burden was sane when he com- beyond a reasonable doubt the defendant prove beyond prosecution must a charged. the act mitted from suffering was not (a) doubt that defendant reasonable defect, (b) was, the act was or if he disease or mental mental mental defect. product of that mental disease not Additionally Columbia, in the District of a of verdict insanity represent of does not guilty reason an affirmative jury that was in finding the defendant fact insane. It government means that the has failed to sustain its bur- simply society proof. agree exposed I cannot that should be den of dangerously criminally who is individual insane. opinion. necessity I I dissenting regret This is a have my with in me, differing brothers resting on case. felt duty express I to be regret what conceive a solemn I further importance, On a length. so much at less my views done not have so. I would fear, feared, still the effect of sustaining have

I in purportedly M’Naghten rule will con- case blindly has and is present existed since 1843 here. legal evil tinue substi- suggest I my duty I would if failed to be remiss M’Naghten tute for Rule. Som- State,

In Mr. Justice Parsons v. Ala. So. insanity de- say when an year erville had this to interposed: the time fense was “First. the defendant at Was fact, crime, alleged the commission of the as a matter idiotic, mind, afflicted with a so as to be either disease or otherwise insane? ease, right wrong, If from

“Second. such be the did he know applied particular question? If he did not have to the act knowledge, legally responsible. such he may If knowledge, “Third. he did have such he neverthe- responsible if legally following less not be the two conditions concur:

“(1) If, by disease, of such reason the duress mental he right had so far lost the to choose between the power wrong, doing question, agency and to avoid the act in as that his free destroyed; was at that time time, if, alleged

“(2) And at the same crime was so con- disease, in the relation nected with such mental of cause and effect, product solely.” as to have been the of it jury in

Had the the instant cause have been instructed, thus the defendant Noble would vegetate not sit and in the Deer prison contrary Lodge but on the would be given confined and help in medical some institution for mentally confused.

Case Details

Case Name: State v. Noble

Court Name: Montana Supreme Court

Date Published: Aug 2, 1963

Citation: 384 P.2d 504

Docket Number: 10533

Court Abbreviation: Mont.