*1 September 25, 1962.] 35692. En Banc. [No. Anthony
Thе State Washington, Respondent, Don White, Appellant.* *Reported in 374 P. 942. *3 and David A. Young Weyer, C. for
James appellant. Caplinger, Carroll, Dixon, Charles O. Robert E. James J. respondent. and for Hoff, Victor V. Appellant charged, by information, J.
Donworth, committing alleged have com- two murders been day places mitted at different on the same times and (December 1959). first-degree Jumper,
Count I. Mrs. Alice murder of premeditation engaged committed with and while in com- mitting, attempting withdrawing commit, or in from rape of, the scene of the and commission crimes of robbery. second-degree LeRoy II. The
Count murder of Willie Dixson. appellant employ
Since was without an at- means to appointed by torney, present counsel were court represent orally pleaded guilty him. Thereafter, he guilty by plea and each count also entered a written of not irresponsibility. reason of mental began May Appellant’s trial 1960, and the case was May for submitted deliberation on 26. On following day, guilty returned its verdict of as charged special and, to each count also, verdict as to inflicting penalty. first count death appellant’s
Thereafter, alternative motions for arrest of judgment new trial were heard denied, judgment and sentence were entered in accordance with Appellant appealed the verdict. has therefrom, this court assigning rulings as error eleven of the trial court, opinion. later will be considered in this dispute There was little in the evidence as to the com- *4 of the mission two homicides. The state offered three con- signed by appellant fessions which related to his activities evening between the evening December 23 and the 24, 1959. In the (four December pages), given first of these statements Sgt. Swindler of the Depart- Seattle Police appellant 28, 1959, ment on December described the events preceding following and his Willie assault on Dixson (six statement evening 24. In the second of December date, the same given on detective later pages), the same Mrs. on the assault appellant the circumstances related laundry place room of the Jumper, took in Alice which housing on project 7 a.m. about in Seattle Yesler Terrace Jumper died on December 24. Mrs. December (three pages) The third statement assault. of this result January Shaneyfelt on given by appellant to Detective was help alcohol the amount of determine order “to 6, 1960,in morning night Dec. Dec. on I had consumed marijuana that I had smoked the amount of 1959, also period during of time.” this same appellant case, took the rested its had
After the state as to assaults. testified both his own behalf stand memory as to the details stand, his on However, while Jumper not as clear as it on Mrs. was was assault on As to assault Willie Dixson confession. in his second self-defense), appellant’s (which made in claimed was present memory clearer. There is no much contention was Jumper kill Mrs. appellant did not both and Willie Dixson. No. 1:
Assignment assignment, appellant’s first he contends that the trial In admitting objection, evidence, over erred court recordings tape of two interviews him between two during he confessed Sgt. that he had com- Swindler knowledge appellant, Without homicides. mitted both telephone microphone concealed in was and the During a desk drawer. located these inter- was machine writing supposedly sergeant out a statement views, sign. appellant to for objection ground
Appellant’s admission of the recordings that their use tape in court violated two fifth and guaranteed him the rights fourteenth amend- playing Constitution, and States the United ments prejudice him as would to his defenses, before them penalty of whether the death on particularly imposed. should
556 objection recordings tape
A further to these was that they properly were not identified and authenticated in accordance with rules laid down this court in State (2d) (2d) (1956). Williams, v. 49 354, Wn. 301 P. 769 We appellant’s argument support have considered objection opinion latter and are of the that the admission recordings by and use of the the trial court was in accord- ance rules laid down in the case and Williams cases cited therein. appellant deprived any
Nor was
constitutional
rights
presence
because he was unaware of the
the re
cording
during
device
the interview. His contention in this
respect
speaking orally
is that he had no choice between
“speaking
purpose
having
the detective and
for the
argument
what
said recorded
aas
confession.” This
premise
Mapp
based on the
that,
Ohio,
v.
367
643,
U. S.
(2d)
(1961),
L.
1081,
6 Ed.
The basis second I to Count refusal strike or reduce the trial court’s to ground second-degree the state’s murder on the felony premeditation murder. failed to or a evidence show regarding challenge Appellant’s position and motions his made at the trial is stated in his brief as follows: appellant challenged “At the close of state’s case the involving sufficiency the First premeditated design of the evidence as the count Degree challenge Murder. The was made as both ‘Felony-Murder’ and The Doctrine. appellant presented had trial court a memorandum Felony pertaining the denied Murder Doctrine. The court
challenge Appellant presented and motion. then large portion psychiatric evidence, a of which consisted of testimony. buttal, appellant’s At the close of re- case state’s appellant again pre- moved to have the felony 1 meditation murder removed from Count thereby removing Degree. the count of murder in the First appellant’s premeditation motion as to court denied felony murder doctrine. charge
“In order to a in the First establish of murder Degree upon premeditation, proof or of deliberation based necessary. (2d) premeditation 696, Davis, State v. 6 Wn. (1940). killing 706, 641, P. The fact raises alone presumption premeditation no or deliberation. State (1927). In the Gaines, 144 Wash. 258 Pac. charge at state on its of Murder in the First case bar the beating Jumper Degree from Alice died. showed which being beating by fists, instrument In It was a no used. any relationship prior addition, the state failed to show or any acquaintance or other evidence from beating premeditation. or could infer deliberation occurred walked community-type appellant in a washroom when Nothing use the toilet. else shown beating, therefore, the evidence for the failed to basis prima premeditation establish a facie case of or deliber- ation.”
Appellant testimony further contends that psychiatrists produced by the defense that he established incapable formulating an intent effect death Jumper. excepted of Mrs. Consistent the contention, he premeditation. to the court’s instructions on bearing pre The state’s evidence on issue felony meditation and also on the issue of murder included appellant’s signed confession of 28,1959, Deсember in which beating (whom Jumper described the of Mrs. he had before) never seen as follows:
“ . . . I believe it was about 3:00 a.m. when I arrived vicinity back of 12th Ave. & Jackson I then St. vicinity Housing Project walked around in the of the Yesler Finally, passed for Yesler two three hours. I one of the Housing Project Laundry Rooms which is located just off Fir ISt. used to live in the next unit from where laundry passing laundry room is located. IAs was *7 doing room, I looked in and noticed a white woman some- thing up folding hanging with some clothes. She was either or go laundry I clothes. decided to into the room to use the head. The had woman her me back to as I entered the door standing by dryers. past and was over one of the I walked the woman into the and back tried the door to the head I but was locked. then turned around and started back got just punched out. I even When with the woman I her my knocking glasses knocking with the floor. The fist off her and her to glasses spot slid across the floor to a near the by my door. The woman knocked wasn’t unconscious blow grabbed legs and me she around and one hand. I up fairly high then lifted her off the floor real fast and so legs up dropped that in the air. I then her flew her and her body. head hit the cement floor woman still wasn’t before rest her trying get up. unconscious and picked up storage her then her and took a I back into small room. I laid her down on cement floor on her back the door. her head toward She still wasn’t with unconscious my or four times with I hit her three fists in so her face. anymore except then she move sort of She didn’t raised ring. her and removed watch and I her arm I then started lying. came back where she was leave then I but had panties ripped and had her her torn off earlier dress so got I into the intercourse minute when with her. had intercourse with her for back room I had sexual
I a but about did a climax. I not reach would this woman describe being yrs. age grayish hair about or 46 with black stocky and a I kind of with build. don’t what remember wearing. I clothes she was storage As walked out back laying glasses room, I noticed near the woman’s laundry picked up put the door. I them and them in tub a nearby. I then started to leave but about that time another girl and a little white woman laundry back were at the door to opened stepped room. I the door for them and then fooling and started around with some clothes laundry were folded woman minutes, across tub. After a few girl they young the little left. left, Just after laundry laundry colored came into the woman room awith bag using washing full of clothes. She started machine talking and we started each other. I told her that I waiting help washing. was We friend of mine’s do wife together things, talked for an about hour about various talking I don’t remember what we were about. At one laundry get time she left the room to me some matches my cigarette. A for later, short time she and I left the laundry During room about the same time. all this time wearing Housing Authority I had Badge. been I walked laundry Way south from the room toward Yesler walked to the California Bar located at 2nd Ave. and Wash- ington during St. Sometime this walk I removed the Housing Badge put my pocket. it in I drank at wine twenty thirty Bar California minutes and then went pawned to the Pioneer Loan office where I the woman’s ring watch and I had taken earlier. I received a little over nine McCory dollars for the two items. I used the name signed pawn I Watson when pawn- book because the pawned me broker knew name. After I the watch ring, and couple I went over to the B & R cafe where I had a walking of mixed drinks. I then started around and finally up way ended at home about noon. On the home at 24th Ave. and Ea. Union I Housing Badge St. threw the *8 ” garage and a cleaners. . . between . At the close of the state’s case the trial court ruled that there sufficient evidence to take the case to the premeditation felony on the issues of both murder. appellant took the When stand his own defense, he part, examination, on direct testified as follows: you “Q. testify you actually IWell, want as to what thing, laundry. recall. What is the next Don? A. The other laundry? Q. What other A. The one at Yesler Terrace. you Q. laundry And do know that from somewhere else? right laundry A. I Q. used to live in front it.of Is this the your washing? Q. where you laundry? Now, mother did her A. Yes. when you being lived at Terrace, Don, do recall in this many Q. A. Yes. On or few occasions? A. We used play games you lavatory Q. in it. Do recall the hide— facility there, whether only laundry? you Q. A. Yes. At the time lived facility open. you Q. was this A. Yes. Do recall they They were ever locked or not? A. can No. Q. be locked from the inside. Now, what time of day you say you laundry recall the at the Terrace —do — you you Q. recall what time it was? A. No. What do recall walking about that incident? A. I walked—I remember you you Q. the door. did What observe as walked in the Nothing. you go? Q. door? A. did Where A. To back. you testify Q. point Now, I want from this on from what you going remember at the time. A. I remember in the door, open, back, and I walked to and the door wouldn’t front,
and I came or I turned back around and bang! bang! Q. Q. was a a there There was what? A. A And you just throwing then what do A. I remember? remember punch. Throwing punch? Q. Q. Now, A. Yes. then what you lady flying Q. do A. This in the remember? air. Then you you what do remember? did What remember next? you you asking I’m now what remember at that time or recalling— Trying something put A. underneath her Q. that? A. I think head. And where was it was in the back. you Q. around, Don, turn Would look at Defendant’s you you 1. Exhibit No. Can to state where this was that' tried something put washing under her head? A. The machine right? storage right. Q. Q. the left or the A. room. On Do you just putting something A. I remember that? remember you Q. her head. Do under remember what this was? you why you put Q. I’m Do remember A. not sure. it under put I and I her head? A. left went back to it under her thought you Q. hurt. I she was What do head. mean? You n said me that thing you next remembered the. something you putting you head, and under her then said you put something and then came back left under her hitting her, I A. I think. I head? throwing punch remember remember going through I her, at and remember her talking, Q. and I don’t air, was still know— but she Now, *9 you you something put do recall under her what head, after then? Talking lady. Q. a Now, A. . . to another . you tapes you well, heard the this, Don, I will ask result — Q. played by policе, you A. And that did not? Yes. were gave tapes you statement than under those much fuller you you explain just given? Q. A. Can have Isn’t that correct? you Yes. Q. that? A. Yes. do so? A. When Would they before, me, I arrested and told I was was —before papers arrested, I read in there was that I had—that they people; names, two bothered one—not be- some— cause you places. Q. I them, didn’t know but the Did description things papers read of these then? morning Q. I A. Yes. When? A. It was the morning, took a bath reading paper, and I and I was arrested Saturday. Saturday? Q. Q. A. Yes. Christmas was on the Friday, you Q. not? A. 25th 26th was it Yes. Do mean on the you Q. were A. . if Now, Don, arrested? Yes. . . you try speak up you so can will we all hear. When were clothing you talking stand, last on that I your testimony? were some about you you put her believe said under head. Is that you memory testify your I want from say it, of this instance. A. I don’t know how to but I am not sure of what I did while I I am was there. not certain. By reading newspapers, and told, what I what listening logical to, fits; I have been I have—it it makes you you Q. words, In other sense. don’t know can’t— your memory refreshing whether it is your from recollection or you
recollection or from what remember the inci- segregating Q. A. dent? I have a Well, bad sense the time. your memory happened from tell us you total what as best you lavatory can from the time that went to the back turning door found it locked. A. I remember around walking the door and back front, and at I the time bang your Q. feeling and a heard screech. What was at you time, Q. that A. A headache. After A. do recall? Just a headache. What? you bang, Q. your heard what was bang A. It reaction? wasn’t as much as like scream, you right, Q. like a screech—like All this, brakes. heard you? Q. happened, Yes, A. did like a scream. And then what your memory? punch. A. to the best of I remember the happened? going going Q. And then A. what I remember her through through you Q. the air. You A. remember what? Her going through Q. air, the air. Her is that what you Q. A. Then said. Yes. what do remember? A. At stage folding towels, I I am but don’t some remember when. you Putting Q. Then what do A. remember? remember —I going you Q. in the bathroom. And what did do with those you put towels, if A. I them remember? somewhere. I put you just Q. testify where I them. don’t know Didn’t you put thought maybe— them under head? A. her I put put I am not sure I I where them. them somewhere you Q. her, near back out there? I know. Then did do? A. I left, what went you Q. you to the front room. Do remember what did *10 you Q. A. I think I set on a table. And do re- A. It member where table was? was in the corner. you point on the your Q. corner? Can to the corner What with By righthand Q. A. hand? driers side. The corner righthand you Q. driers on the side? A. Yes. And referring Q. are to Exhibit Exhibit 1? A. State’s Yes. Then Talking you do recall next? A. to a—the what woman. you Q. Q. A. . And that was Mrs. Ricks? Yes. . . Do you A. Q. I think I went know where went? home. Now, you you try your to and recall as I want best can from memory, you you do think total where went? A. Home. you tapes, you police Q. Now, heard the did not? A. Yes. you police Q. And did hear the officer when you you you Q. A. what did to her? Yes. And he asked said you things? you Q. said, A. And did Yes. he ‘You mean you you raped said, ‘Yes.’ her?’ And Do remember that you testimony? happening? Q. this A. Yes. Do recall A. Not you you raping Q. Do know whether did or her, no. didn’t? why you you police you Q. told the if A. No. Do know Why? papers already Q. A. The A. Yes. don’t know? said ‘Okay.’ just papers ‘Brutally said, did it. I said that I ‘Okay.’ I said beaten, criminal assault’. I never said by ‘you anything. you Q. do mean What never no to said Why you? anything’? I Q. A. didn’t didn’t care. no Do you tapes you it on the was stated had taken also recall her you ring taking A. recall that? I don’t watch; do remember having you Q. Q. it? A. remember Yes. it. Do Do you Q. you did with it? A. Yes. What what did remember pawn shop. Q. you I it to the A. took it? When? do with day. pawn Q. shop What remember did A. I don’t you go my one The same brother-in-law’s watch to? A. was you Q. you one? A. No. Do Q. recall which recall Do in. got Q. money you A. them? No. Was it much how A. Yes. $10? say ‘yes’? you Why A. That’s Q. what the do man guy A. got Q. man said that? What I said, $10. pawn-shop Q. man? A. Yes. Q. mean You But here. was from memory trying get your are your is what we own your try you answers, Don. from own Will answer somebody say? memory A. I don’t you else rather than heard what getting money I him at all. from remember my talking thought him, remember but I was about giving watch, and I him don’t rеmember brother-in-law’s you Q. watch; I said I But but did. remember woman’s having Q. Now, A. watch; is that true? Yes. woman’s you you thing You said is the next remember? went what laundry; you you after that? home left the do remember you Q. now, home. I Well, A. I I think I want said went you A. I don’t know where I what remember. went answer after that. thing you Q. I next remember? A. What going my my home then —or I had home—I was in was neighborhood, been going and I in the back door of from the house corner.” testimony deny killing
Appellant’s did not of Mrs. robbery rape, Jumper nor the consisted of statements but clearly trial, at the time that, of the recall unable the details of these events.
There was sufficient evidence both at the close of the end case and at the to take state’s trial both these *11 murder) (premeditation felony jury. and issues (2d) State v. 6 Davis, Wn. 108 P. 641 (1940), by appellant regarding cited his claimed lack of showing premeditation, a sufficient contains the follow ing applicable the statement of law: premeditation required “This court has held that the support to order a conviction of the crime of murder in the degree may point first no involve more than a moment ” of time. . . . felony
Concerning appellant issue, the murder calls Diebold, our attention to State v. Wash. 277 Pac. (1929), felony which it stated that the committed attempted have an must intimate relation and close separate, connection with the homicide and must not be independent distinct, and of it. the However, fact that here by preceded the homicide a few seconds or minutes the robbery rape and does not isolate it the from other felonious specified in I. acts Count that, hold under the evidence
We in this case, the two jury decide, and for to issues above discussed the were submitting the them to that the court’s instructions were erroneous. 3: No.
Assignment Appellant expert Dr. G. Charles called as an witness psychiatrist, him while he Sutch, a had examined who desoxyn under of sodium amatol and was the influence serum). given drug (a Appellant truth was so-called diagnosis. making to assist the doctor in his respects: It that trial erred in two is contended court permit refusing, objection, 1. In on Dr. the state’s appellant testify any made as to statements Sutch drug or to describe this under the influence of while interview him. recording tape refusing In evidence a
2. admit in (which appellant requested he claims the interview jury). presence played court to have diagnosis appellant’s to his Dr. Sutch testified as permitted and to relate the kind of mental condition was drugs purpose administered, thereof, and their effect appellant. fully explained upon basis witness diagnosis. diagnosis appellant, was favorable should have there no contention statements purpose cross-examination and for the admitted been contradiction. testimony rejected
Appellant that the contends recording prove tape the truth were not offered to psychiatrist made him to while statements drugs, influence of the but enable under psychiatrist’s opinion the basis understand to better psychotic appellant chronic, reaction which had episodic. words, recurrent, In other the statements *12 simply support to lend the doctor’s con- offered were clusions. assignment, appellant principally support this relies of
In (2d) (2d) People 590, Cartier, 51 Cal. 335 P. 114 v. on (1959), the trial court was reversed of because its in which evidence under similar such circumstances to admit refusal
565 Appellant, quotes in a brief, murder case. in his follow- ing portion that decision:
“ testimony present ‘In the case was the offered expert opinion psychiatrist of the that the defendant was alleged insane offense. at the time commission of the by psychiatrist made while statements defendant drug under purpose for the the influence of the were not offered proving the therein. truth the matter asserted foregoing Hence, rule, under the it was error for trial '" judge proffered to exclude evidence. argued foregoing It is that the rule” words “under the (2d) People Jones, referred the case of v. Cal. (2d) (1954). 266 P. аrgues state, the other hand, on that the Jones case only psychiatrist analysis give expert
held that the could his questions of the defendant’s his under answers to while drugs. foregoing the influence such Hence “the rule” quotation referred to in the from the Cartier case did not testimony regarding include what the defendant said and during psychiatrist’s did examination him. support position
The state cites of its the earlier Cali- People (2d) App. fornia McNichol, case of 100 Cal. (1950), 224 P. in which the defendant offered to prove, by psychologist, by statements made the defendant pentathol. while under the influence of sodium In answer to the defendant’s contention that the trial court erred in proffered excluding testimony, the district court of appeal said: argument appellant’s “As for that what said
appellant should have pentathol under while the influence of sodium upon allowed been to show the which facts Singer opinions, testimony Mr. his based witness given response questions regarding hypothetical was man in the condition of this defendant; and his conclusions man would have had were to defraud. How such not a conscious intent any during made statements defendant imposed hypnotic state would have served to show replies upon hypothetical he based facts any questions, apparent. all, facts at is made Evidence showing appellant’s condition, was admitted and the apparently questions appellant’s addressed were intent *13 566 drawing uttering checks, defendant did
in the attempt not or he had written and not contend passed. show only open intent the matter to in Defendant’s was subject Singer question, response testified on and Mr. ” questions . to him. . . to the submitted Supreme The the Court of Cali- most recent decision of bearing upon People us is fornia the before v. (1961), Rptr. Busch, 898, P. in which 16 Cal. a doctor had examined the defendant in a medical who (in first-degree case, had used addition to the murder usual hypnosis analytical methods) an as tool. trial court competent not had determined that the witness was testify mind the frame of at the as to defendant’s times killings, based on information he committed several by him from the defendant while latter was obtained hypnotized. quoting Supreme Court, after from the California affirming ruling, the trial case,
Jones court’s said: “ expression hand the . . . On the other latest of this admissibility expert opinion evidence court as through the use of a lie detector is as follows: formulated yet enough reliability not as have tests do ‘Lie detector testimony expert justify based on the admission their (People (Citations.)’ Carter, 737, 48 Cal. 2d results. 674.) P. 312 2d conceded that this the instant case witness “In expert appearance an in the role of in a criminal initial his subject matter of an accused’s state of mind; on the case psychiatrist engaged not had a that practice general practitioner shortly a as until of medicine expert appearance in as the case at bar an his before laying hypnosis. In specializing foundation for the opinion evidence of the of mind of state introduction technique upon not the use of theretofore based defendant sufficiently by recognized courts as reliable to form very opinion, least, at the an some for such the basis showing use in the examination of successful others itsof purpose, the same either defendant than witness be experts appear field, in the would other or persuaded that under the required. circumstances areWe judge unreasonably did act the trial narrated herein proper that a foundation was not determination reliability analytical established seeking recognition qualifications as to of an tool still psychiatry, in the field particular give opinion of this an witness to on the state of mind of the accused on the occasion of the commission of the homicides herein. It re- must be ‘ * * * general membered, rule is trial passing upon qualification court, in of a witness offered expert, appellate as an discretion, has wide and an court *14 ruling will not its disturb in the of а absence manifest abuse of such discretion.’ ...” recognize hypnosis
While we that and “truth sera” are entirely psychiatric two different methods of examination, persuaded we are require not that the California rule would rejected by the admission of the evidence the trial court in this case. general subject reliability of the of lie detector length
tests is at discussed in State v. Sinnott, 24 N. J. (1957), Jersey 132 A. Supreme in which the New Court declined to follow the California decision in the saying: case, Jones “The Jones case has been criticized Falknor and Steffen, ‘Evidence Character: From the “Crucible of of ’ Community” Psychiatrist,” to the “Couch 102 U. of of (1954), praised by
Pa. L. R. 980 ‘Expert Psy- Curran, Personality chiatric Evidence Traits,’ 103 U. Pa. L. R. (1955). Both concerning articles contain reservations dependability of the offer in especially case, Jones ground only on the that there were two consultations with the defendant, objection but Curran maintains that go weight admissibility. should rather than to Interest- ingly enough, quotes Curran a letter from Dr. Solomon, the psychiatrist great Jones, used to the effect that he had difficulty dealing questions ‘incapability.’ as to Dr. ‘ * * * my opinion Solomon writes: anyone is ’ * * * capable anything is laymen psychiatry, “As in the field of we are dubious as validity offer in this case and sufficiency of the foundation laid already below. We have reporting stressed the authorities that the administration necessarily produce of ‘truth serum’ does not the truth. emphasize Dession, Freedman, al.,[1] et again over and over 1 62Yale L. Jour. 315. ‘auxiliary procedure drugs only an
that use of in a is valuable as thorough diagnostic Apparently, how- examination.’ unimportant present they regard for ever, and others it as always representa- drugs purposes conduce that the do diagnosis empirical fact. For tions consonant with personality immaterial, in their it is traits and tendencies falsifying, opinion, subject either of his is whether suggestion. drug or in accordance with own will primarily truth to elicit but enable utilized not subject’s probe psyсhiatrist quickly sub- more mind.” conscious guarantee simply truth be- there no
It is clear that under the influence made while cause statement was drugs, for
“ findings experimental and clinical indicate . . . only unconscious have conscious and individuals who yield doing confess and so are inclined to reasons drug interrogation some hand, the other under influence. On especially some, are withhold information able to suggestible are neurotics, are to lie. Others so character able response suggestive questioning, they behavior which describe, in will ” Dession, in fact occurred. . . . never *15 Investiga- “Drug and Criminal al., et Induced Revelation (1953). 315, 319 tion,” Yale L. Jour. extremely layman difficult, find if not
A it would testimony impossible, an evaluation of the to make accurate possibility hand, On the other which was offered. by might or misled such evidence is confused be quite Therefore, the trial court could have concluded real. testimony might have value such that whatever dubious outweighed by danger of mis than its would be more by jury. interpretation and misuse It would have been quite proper court, for the trial in the exercise of its sound proffered evidence on the discretion, to exclude basis foregoing reasoning. of the the trial court in this case hold that did abuse
We testimony limiting the Dr. Sutch to its discretion drugs by giving explaining him and to the use his appellant’s opinion mental condition based on own as to his under their influence. of him while Nor was examination tape refusing to admit any of discretion there abuse definitely (assuming offered recording it was evidence). length assignment at some discussed third
haveWe impression in question one first raised is because opinion, merit. is without this state. In our it No. 4: Assignment appellant assignment contends error,
In his fourth challenges overruling that the trial court erred in juror jurors. prospective prospective cause One of several said that: “ . the relation- . . I have convictions about definite degree
ship irresponsibility and mental first between case, in this hard for me murder, and would awful give entirely crazy, a fair de- man unless this ” . . cision. . pro- would have Another indicated that the defendant responsibility convincing duce on mental more evidence order to convince case, than on other elements of the him. prospective jurors, all
Both these as well as assignment there- error, others involved in this were thoroughly by questioned after court and both previously Despite opinions, their formed all of counsel. jurors they disregard these indicated that would their feelings previous on the evidence and decide each presented trial, at the the court’s instructions on as the law. juror disqualified
A
is not
because he holds certain
preconceived
provided
put
ideas,
he can
these notions aside
given
and decide the case on the basis of the evidence
at
given
and the
him the court.
the trial
law
See State
*16
(1948);
(2d)
P.
Bird,
v.
31 Wn.
978
State v.
(1903);
Croney,
122,71
Gile,
Pac. 783
v.
31 Wash.
State
(1894).
12,
A examination of the entire voire dire exam- challenged prospective jurors each the ination of of shows that the trial court did not abuse its discretion over- ruling challenges. the support assignment record does not this fourth
error.
Assignment No. 5: assignment appellant challenges
In this the constitu- tionality following portion providing the of RCW 9.48.030 imposition penalty first-degree for the of the death murder cases: degree punishable by “Murder in the first shall be im- prisonment penitentiary jury in the state life, the for unless punishment every shall find that the shall death; degree, jury trial for murder in the shall, first if it the find guilty, special defendant also a find verdict to whether or cial penalty not the spe- death inflicted; shall be and if such penalty verdict is in affirmative, be death, shall provided.
otherwise, it shall be as herein
...”
survey
A
pertaining
of the various state laws
jury’s
determining
punishment
first-degree
role in
for
may
appendix
murder
be found in
United
Andres
(1948).
States, 333
U. S.
92 Ed. 1055,
L.
Appellant is that there no to a defendant asserts mercy, jury application without the when a recommends penalty particular standards, there normal because thereby appellant However, contends, is reduced. when given power penalty increase im- —to severity greater pose punishment than the normal a exercising judicial, punishment a rather —then discretionary, than function, and the exercise of this on definite criteria. based function must be reply Appellant, brief, said: in his jury, inflicting it, a . now see death As we “. . person’s religion, may race, penalty, their because do so
571 demeanor circumstances, attitude their their economic history, prior of the color even stand, on the witness their jury any a time It clear that hair, their their stature. is or any in alone or factors, these on of bases such a decision protection equal due the laws and of combination, it denies process of law. appellant summary are two. then, “In contentions of the punishments or prescribes in different
The statute degrees punishment committed the same act different of for person of class under the same same circumstances equal protection clause and is therefore in violation of Constitution. of the 14th the United States Amendment of Secondly, jury statute, return a could, even if under a equal process death, verdict of protection it is the due violation of the United clause of the 14th Amendment of so for allow them to do States Constitution state statute to forbidding proper them con- standards, without to without least, instruct them as to factors, sider certain in to inflicting penalty.” basic in a considerations such point appellant’s taken. is not well We think that wording If the and those difference in our statute between jurisdictions any practical of most other effect on has rights first-degree state, murder defendants probably defendant, effect is because favorable such likely to be cautious about members are much more regarded penalty penalty imposing is the death when that extraordinary, penalty” than is the “standard as when it first-degree for murder.
Furthermore, no
other courts
decisions
this court or of
point
directly
of last
cited in
resort which are
have been
support
appellant’s
statute
invalid.
contention that this
Riley,
being authority
v.
126
The case nearest to
State
(1923),
upheld
court
Wash.
In the bar, case at the court trial instructed the jury imposition penalty the as to of the death as follows: every “You are instructed that in trial for murder in the degree, jury guilty, shall, first the if finds the defendant it to whether special also find as verdict not the death or penalty special inflicted, shall be and if such in verdict is penalty affirmative, the the shall be death.” Ed.q Under v. States, 303, Winston United 172 U. 43 L. S. (1899), given adequate 456, 19 Ct. 212 S. the instruction was apprise jury duty the of its to determine not whether or penalty death the shall be No re inflicted. standards are quirеd by our statute or the constitution.
Assignment No. 6: assignment briefly disposed Appellant may
This be of. urges inflicting jury tous review the action in of penalty jury death and to hold that the abused its discre- quoted tion has no au- under statute above. This court thority jury’s or statute otherwise to review the action rendering “guilty” charged in of or either its verdict (after guilty,” rendering special in its “not verdict general guilty) penalty verdict of as to whether the death shall inflicted. judgment cannot our for that
We substitute might jurors, jury instance, if, in either had we.been we even (Art. 1, á verdict. The constitution have rendered different 21) right by jury § trial in shall remain states that the usurp which the constitution functions violate. We decline jury. vested has
573 assignment this presented this No (2d) People 650, 62 may 7 Cal. Valenzuela, v. court decide. Wyo. 99 P. (1936); (2d) Lantzer, 55 State v. P. (1940). (2d) Bradley, majority opinion 175 Wash. State (1933) (a first-degree in which murder case
27 P. inflicted) penalty supports our conclusion death pass upon exclu- are matters which court cannot sively jury. province It was stated within opinion: questions argument is devoted “Much of counsel’s carefully adjudge urging
fact for this court to scan facts justify they the ver- are sufficient whether ourselves imposed. in- This is court of first not a dict and sentence stance, matters. When purely of errors such one the correction but competent sufficient, it is the facts are case, so in this them. The did for the to resolve examining seeing hearing the ex- witnesses, after killing, pictures and resolved hibits and scene only guilty appellant that, them murder in but that the death effect agree, degree, thoroughly which we first penalty should be inflicted. *19 thorough “After a examination of the entire record and by present complained
consideration of all the errors nothing appellant, justifying counsel find for we can re- special finding jury versal and verdict and judgment pronounced trial court thereon. There- they fore, will all stand affirmed.” 7: No. Assignment
Appellant failing contends the trial court in erred give proposed instruction No. which would have jury instructed the as follows: you guilty by “If find that the defendant is not reason of irresponsibility, you
mental is not to determine what responsibility is to with him. That be done rests with the Department jury.” of Institutions not with the support in rendered, After the verdict was and of the appellant’s trial, motion for new counsel filed their own stating post-trial their affidavit, result of interviews jury. of the this members substance of affi- seven imposition purported show that of the death davit penalty primarily majority resulted jury because a of the they felt that could not keep appel- trust the authorities to lant large institutionalized until he was safe be at protect society. thus
Appellant’s position counsel state their in their brief as follows: bring “In case, possible order to all the facts be- jury, necessary fore the appellant’s bring it was before the court the history whole life which included the records many from private state and institutions where he had placed. recognized been We time, at the without such an in- might dangerous struction, this be somewhat inasmuch as replete these records were with the failure of the authorities charge appellant to maintain the in these institutions large until thereby fully safe protect was to be at society. ...”
Appellant
dissenting opinions
one
cites
Bradley,
State v.
(1933),
whether, if such condition of or mental sibility does not exist at the time of the trial, there is such relapse likelihood of a or recurrence of the insane or mental irresponsible condition, that the defendant safe large. persоn to be at ...” RCW 10.76.030. present case,
In court so instructed the *20 four instructions and submitted forms for the return of special with verdicts accordance the statute. requested correctly not
The instruction does state the appellant right applicable case, to this and had no law support presenting plea evidence in assume, in his of his given. irresponsibility, The trial of mental that it would be failing give proposed instruction court not err in did No. 23.
Assignment 8: No. appellant
After called defense, the state had concluded his psychiatrist. He a had never Garre, rebuttal witness Dr. appellant personally himself had familiarized examined but concerning appellant. reports with various official long hypo- Dr. on was asked Garre, examination, direct question relating referred to in thetical homicides to the two opinion if he had an evidence. The was asked witness concerning person referred to mental condition of question. hypothetical affirmative, in the in the He answered following opinion his was. The and then he was asked what place: then took my My opinion based on review of man, is that this “A. my opinion, basically, classified, in exhibits,
these to be is sociopathic identical as a the is almost with individual which psychopathic individual. We can well
older term of him made form into understand the circumstances which a although, pattern time, shows, he same which but at of and inhibitions, has to he time the influence of wine course, at that under marijuana, judgment his own and he which decreased law, nevertheless in terms of the but please, I Weyer: If the court do want be— Mr. object testifying —I I the law. terms his Court: you complete If think he can have a his answer. motion complete, I that those terms when the have answer is think may by previous he I think con- witnesses, been used and you tinue at end his have motion answer —if Weyer: May I the record answer, will entertain it. Mr. ruling? exception show our Q. to the court’s Court: Yes. you. you proceed, So, A. Thank Would Doctor? clearly my opinion law, of the defines that terms which knowledge important part whеther most is the the commitment of the time actions individual at the right wrong, my an- is able to differentiate between distinguish position to swer in a between is that right wrong, law, therefore, in terms responsible I more But elaborate once action. understood, and if this is well individual that if his record finally what de- understood, we can understand is well basically veloped pattern has to classified *21 sociopathic. psychiatric as All the other terms which have labelling high degree. are, been used A course, true to a of an individual is never, all, first of never clear- into almost cut case because we all show features which blend basically sociopathic one but I another, still feel is a responsible Q. individual iswho before the law. isWhat your sociopathic definition aof Weyer: individual? Mr. objection, Honor, Same Your and we ask the last that state- testifying ment be stricken as he is as what the is to law opinion, guilty job in his and if of the That he’s law. is the jury. of the attempting It is to me not clear that he is The Court: testify you to as to the law. like to Would referring part, elaborate on that whether he is to the law you Q. —well, with what intent he refers to law? Are the legal sanity familiar what the I is, test of Doctor? A. McNaghten Q. am familiar with the rules. is And that what? A. That an at individual the time of the commit- distinguish right wrong, ment of the can act between and type Q. he knows the of action which he commits. And objection, then Weyer: Honor, in this— Mr. Same Your and we ask that it be stricken. The I will reserve Court: ruling. Complete your you Q. examination. define Would sociopath please? please— If Weyer: the court Mr. questions you Just moment. that Is all the that Court: planned eral point? on Caplinger: to ask that I have sev- Mr. questions, your Honor. the Court: —on sense using language legal which he was the with reference to Q. point Doctor,— tests? the Mr. is, see The Court: You Caplinger, objection the that the witness has been tell- ing jury the Now, course, the if what law is. that were clearly objection I so, be am not should sustained. satis- mind, that is the that the had in fied intent witness and I think there is a here thаt distinction must be de- veloped I think somehow other. that as State’s wit- you’re develop Weyer, entitled ness, desires to it, and Mr. if he may point, if so, cross-examine on do and made, the court feels still further elucidation be should questions. point ask is, court will But the we don’t jury testimony want to misunderstand this view language possibility. Now, of some of the There used. is a you course, understand, will that the function of the experts facts; is to decide the the function of is to tell about training; expert of their matters within field tell function of the court When we come tal what law is. tests, different and this of men- irresponsibility, may apparent there confusion special plea what ideas what tests are used on is this good Weyer’s point law, is a function Mr. Q. Doctor, one that there should be no confusion about this. going you you opinion now, I back if had an as asked during period mental condition of time man’s killings you, place. in which two took I would ask these you opinion knowledge being do have an to this man’s distinguish right wrong during able period It is between killings place? of time which these A. two took *22 my opinion basically always knew, that man at this intellectually right least he knew the difference between wrong; emotionally developed and he to however, point knowledge such that the not re- intellectual did acting strain him from Note same Weyer: the out— Mr. objection, ques- mean, that this be I stricken. not this last questions my previous objection goes tion, but the is what I to. think I If will let the answer stand. at the Court: conclusion counsel the direct and cross-examination the defense cautionary given, that a feels instruction should be —maybe give preliminary right I had better now, one supplemented necessary. and it can be if later, jury, you I court, “Members of think as know by you writing this will later time, instruct refer- with by special plea ence to the this issues raised of mental irre- sponsibility. Now, the doctor has referred to certain rules McNaghten rules, which he fied about his the law called first then testi- and familiarity tests, with the he said prescribes, person that the must substancе have ability distinguish wrong right to between and charged. precise reference to act that Now, isn’t his language legal he but referred to these tests. permitted “Now, the court has his answer so to stand you may that know what the witness has in mind when giving opinion. allowing ishe his The court is not that legal as answer to stand test is. the final definition of what the instructions, You later on in the will find that but gives expert opinion, jury an his is en- when witness giving titled to what he has mind he that know when opinion opinion based, and on what his for and it is that reason the court has thus far that allowed answers stand. to talking right wrong “When he is about the so-called and should not McNaghten you forth, rules test or the and so interpret as the that authoritative definition of what test language applies in You this case. will consider the law you
in connection with the later instructions which will get, evaluating opinion understanding what language means used.” portion We have forth the relat- set entire of the record ing assignment No. 8 in Dr. reference order that Garre’s relating legal may sanity to the law be viewed test of proper perspective. in its appellant’s court to strike trial denied motions portion testimony at that did, of the witness’ but explain jury fully permitting
time, to the its reasons testimony jury the witness’ It instructed the stand. they interpret should reference not the witness’ right wrong M’Naghten rules so-called test or the ap insanity definition the test of to be an authoritative plied in this case. opinion, clearly definitely
In our this instruction permitting informed the as to the court’s reasons for ap- testimony stand, rule of law and, also, that the given plicable point them in on this would be case the court’s final instructions and the witness. We *23 the time think that the court’s statement to at adequate appellant’s made to motions strike were was by testimony being jury prevent the from misled the of witness. the seen, did, court at the conclusion of the
As will be the (instruction 33) right No. the that trial, instruct the rule) (M’Naghten applied wrong by should be test That will the facts of case. instruction be them assignment appellant’s with in error connеction discussed approved, No. 33 should be would If instruction No. 9. ruling denying in court’s motions the trial seem testimony portions of referred Dr. Garre’s to strike could not constitute re- correct likewise above error. versible No. 9:
Assignment
Appellant that: contends giving in No. 33 and further “The court erred instruction appellant’s requested failing give instruc- erred irresponsibility, tions on mental Law Institute American which is the irresponsibility.” for mental test Instruction No. 33 told that: irresponsibil- “You instructed are term ‘mental ity’, alternatively ‘insanity’ in the as used with the term plea further of the in these in- defendant and elsewhere insan- structions, means what defined in as criminal is law ity. irresponsible you mentally Therefore, if find that the defendant was you herein, under the definition contained as guilty by must find defendant not reason mental irresponsibility. acquitted plea upon “If the defendant is to be his you irresponsibility insanity, mental or he must convince preponderance time that, evidence at the alleged the crime is to have been mind committed, his perceive to such an extent that diseased he was unable to qualities charged, the moral act with is right wrong and was unable to tell from with reference to particular charged. may person act A be sick or dis- body yet distinguish right eased in or mind and able wrong respect particular from ato act.” Proposed (if place instruction No. 21 substituted 33) No. would have stated rule as follows: “ irresponsi- ‘You are instructed that the term “mental bility”, alternatively “insanity” as used with the term plea the further of the defendant elsewhere in these instructions, means what defined law as criminal in- sanity. you Therefore, if find that men- the defendant was tally irresponsible herein, under definition contained you guilty must find defendant not reason of mental irresponsibility. “ irresponsibility ‘Mental means that the defendant charged responsible for the crimes herein if at the crimes, defect, time as a result of mental disease of said or capacity appreciate he lacked substantial either to crim- inality require- act, to cоnform his conduct to the ments of law. “ “mental ‘The terms disease” or “defect” do not include *24 abnormality only by repeated an manifested criminal or ” anti-social otherwise conduct.’
The essential difference between the two instructions is given was that the instruction which did not acquittal insanity irrespon- on or allow for an based mental 580
sibility, cognition (the ability if under- the accused had acts) regard quality stand the nature of his though (his capacity “to what he did, even his volition law”) may requirements conform his conduct to the substantially impaired by or have been mental disease given instruction, In other words, defect. under the guilty by irresponsibility” defense “not of mental reason ability person to under- is not available to a who has quality acts, but, the nature and of his because stand control his defect, mental or is somehow unable to disease own behavior.2 upon rejected proposed was based
The but instruction § Code, test has since been 4.01 of the Model Penal May adopted 24, Institute, American on 1962. Law sanity concept control an that volitional is element accepted responsibility purpose of criminal is recognize impulse” as a “irresistible states. Some several language found in the much like that defense; use others e.g. People Carpenter, v. See, test. Institute American Law (1957); (2d) (2d) 11 Commonwealth E. 60, N. 11 111. (1958); N. E. Mass. Chester, 337 v. (1959). (2d) 281 231 Ark. 330 S. W. State, Downs (No. 33) assigned is as error which was The instruction major- M’Naghten is the in the rule, which law on based ity of states. correctly instructed whether following instruction, jury by point clear to the 2The was made exception assigned and no taken: to which no error irresponsibility impulse within the mean- mental is not “Irresistible used, impulse,
ing as An irresistible and is no defense. the law growing impulse by, mental' herein, out of some induced is an distinguished perceptive, affecting volitive, from disease person afflicted, powers, to understand while able so against perceive charged consequence him and the act nature and disease, wrong, unable, to resist of such mental because it is impulse to do it. distinguished of the mind as renders a disease from such “It is to be appreciate of the act person and character the nature a charged, unable wrong.” right Instruction whether and to understand No. 35. of the case. the law became This instruction *25 squarely presented by the facts of this There case. was substantial evidence from have found could appellant that though, behavior, could not control his own even right
at time, he knew the difference between wrong. and appellant’s testimony
As in he, stated brief, of his by documentary proof, presented witnesses and to the comprehensive history life from time he of his was four months until the trial. old date of
This appellant evidence showed the frustration ex- perienced relationship in his mother with his foster who alternately indulgent angrily was him with and then re- jected completely. him
Appellant many reports introduced and other evidence relating experiences documents his to at various schools he attended and correctional institutions he to which was Among report Ryther sent. these was the Child age Center, to which he was referred at the of fourteen years psychiatric Ryther, treatment. While at a com- plete psychiatric psychological work-up and was done on appellant Maugham, in 1951. Dr. A. Charles who did the appellant up evaluation, concluded that would end either prison hospital or in state if not treated. Ryther appellant, could not control and it was decided setting protect him a to transfer to which could better him community. and the He was transferred Luther Burbank It far from ideal, was but there no better School. were facilities available. records of the Public Seattle experiences during Service his Schools Guidance show year Boys, at the Luther Burbank School for after which paroled he his mother. Two he months later juvenile court was sent the state remanded boys at Chehalis, institution for and from the for- there to joined Army estry appellant camp. Thereafter, syphilis, getting He contracted and, overseas. after served separated trouble, was from the into considerable service discharge. appellant’s On return from an undesirable with got Army Seattle, home in he soon into further to his difficulty law and was sentenced to the Monroe Up
Reformatory. until this time had a record of- he had burglaries, riding fighting, larceny, prowling, in stolen parole March, cars and auto He on thefts. was released parole 1959, and His testified returned to Seattle. officer that, June, his foster assaulted mother that, threatened during her He testified to burn house down. also attempts period, appellant ob- made serious get employment job tain parole but failed because *26 heavy the reluctance of case load and officer’s appellant employers parolees. He that had hire said to respects parole he was not sent in several but violated his although parole reformatory, the the he had asked back to up him did not think he could to because officer lock liberty. get along if he at remained history history summary, appellant’s is a lack then, In parents him. failed control The situa- First, his to control. Kardiner, the State Abram “When tion summarized August Saturday Brings Up Review, 26, 1961: Child,” the recognize Eventually the comes to the child . . “. parents his weak self mediator between benevolent the leads, a hostile world. This otherwise be and what would parent an and to the enhance- first, to idealization discipline, ultimately impose authority and to ment of his development conscience. we call Should to of what the only implement remaining pattern the occur, fail punishment, which must rest either fear of social control is on institutional police. pressures the absence on parent, reason, for whatever attitudes toward usual deficiency may well emotional creates child with an socially him ineducable.” make necessary provide the con- Next, our institutiоns did appellant released, inadequate facilities, Due trols. for others. time, time after to make room psychologist expert Appellant and witnesses called as ex- psychiatrists, examined him had each whom two reports tensively other and several and had reviewed relating experiences cor- at schools and to his documents in evidence. admitted which had been rectional institutions length concerning the factual at witness testified Each opinion appellant’s basis he stated as to mental condition. psychologist express opinion an declined to based right wrong opinion,
on the test, and but that, stated his charged appellant’s at the time the crimes occurred, knowl- right wrong edge functioning and was not so as influ- ence his behavior he did not have will or the power impulses. to resist emotional psychiatrist
Dr. Sutch, first called defense, expressing opinion, appellant, testified that at the times charged psychotic schizophrenic crimes occurred, had a episodic, chronic, which recurrent, reaction and that reality his contact with was nonexistent. psychiatrist testify, Schwartz,
Dr. second called to background appellant’s (to experience reviewed above) beginning has been made that, reference and stated ability appellant’s gradu- March, 1939, control himself alleged ally diminished and at times of the crimes he position psychologically knowledge. in no on his act appel- answer could not The witness whether right wrong. expressed opinion from He then knew lant banged Jumper *27 Mrs. the door that, when shut of the metal triggered probably appellant’s dryer, psychotic event that outburst. agreed expert appellant’s prog- witnesses that of these
All poor. very for cure was nosis
Before the between the two tests trial court was compelled make choice are discussed, a a third test “product” test, That third test should be mentioned. widespread rule often called the Durham because of the being notoriety upon adopted in it received of District App. in v. United States, 228, Durham 94 D. C. Columbia (2d) (1954). (2d) essence, L. R. In F. 45 A. 1430 214 respon- in a rule a defendant criminal case is not is that product act was the a mental if his unlawful of disease sible Hampshire in The rule has defect. New been or mental way ninety years. Pike, over State v. in the same stated Rep. (1870), Am. 533 and State Jones, 6 v. H. 49 N. (1871). Rep. 242 369, 9 Am. H. 50 N.
584 very recently Appeals
However, in the Dis- the Court of gone beyond original trict of Columbia has far Durham adopted by rule as it first that court 1954. Campbell (C. (2d) In C. States, United D. F. 597 A. 1962), March 29, an the conviction of a defendant “emotionally personality” (administratively clas- unstable by government psychiatrists sified disease since as a mental 1957) majority that the It was held reversed. placed emphasis too much instructions trial court upon capacity behavior, to control his own defendant’s they simply instructing must rather than product determine of whether the criminal act was a They say he mental whether disease. test is would of if had been victim committed the act not have emotionally person- disease, wit, unstable a mental an they ality. be found that the defendant could Thus, hold mental if his motivation was result such innocent regardless whether or sanctions of disease, not could influenced him. as deterrent have criminal law Burger by Judge fallacy pointed out view, in that vigorous very almost criminals dissent, is that all insanity. only Not under could come such definition according instability disease, a mental is emotional Campbell, majority but, States, in Blocker v. United Ap- (1961), Court of the District Columbia F. sociopathic personalities, peals are now who the same of said merely psychiatrists as insane because some classified being display symptoms antisocial, they i.e. recidivistic law breakers. majority Appeals the District of the Court of person apparently motiva- that a whose
Columbia believe morally mind is not are a disturbed tions the result of subject blameworthy, to criminal therefore, and, upon a be based notion must sanctions. a conclusion Such *28 primarily retribu- a means of social criminal that the law Only system under controls. social a tion, rather than responsibility be criminal test for such view could the potential upon the influ- sympathy, than rather on based might upon the offender. have ence sanctions which criminal
585 implications Campbell enormous. decision are purposes say It is that, sufficient for our in the State of Washington, rely statutory we criminal law must on legislature as an de- instrument of social control until time, cides otherwise. Until that the definition of criminal responsibility legal question. remain must say “. . . When we the standard of criminal responsibility problem, legal is a rather than medical or scientific saying larger we are that in a sense it is a social question regulate in that it is established to order. social ” Concurring Judge Burger opinion . . . in Blocker v. supra. United States, judges agreed Burger Judge Two other need to the change of a from the Durham rule.
Other federal circuit courts which have abandoned M’Naghten adopted have are the tests which same sub- proposed appellant stance as the test which this (2d) (C. 7th) case. See Cain, United v. 298 States F. 934 A. (1962); (2d) (C. Currens, United States v. 290 F. 751 A. 3rd) (1961); Dusky (2d) (C. States, v. United 295 F. 743 A. 8th) (1961), (2d) cert. den. 368 U. S. 7 L. Ed. 998, 536, 82 S. Ct. 625.3 we, before us is whether as the
majority jurisdictions,4 should refuse to extend absolute immunity responsibility persons who, from criminal al though understanding quality capable the nature and (the ability distinguish right the acts between wrong), control their are unable to own behavior as a result mental disease or defect. Appeal sharply are 3The States Courts of divided on United this example, M’Naghten. ninth circuit has retained issue. For Ander States, (2d) (1956); States, sen 237 F. 118 Sauer United 241 v. United Supreme (2d) (1957).
F.
640
The United States
Court has not com
question.
Oregon,
790,
on
Leland v.
343 U. S.
L. Ed.
mitted itself
96
States,
540,
1302,
(1952); Matheson v. United
72
Ct. 1002
227 U. S.
S.
(1913);
631,
States,
S. Ct. 355
Davis v. United
165
L. Ed.
U. S.
(1897).
regard
With
41 L. Ed.
Our statute, 10.76, is our RCW originally chapter Especially 1907, enacted as Laws of 30. pertinent to 10.76.030, discussion are RCW 10.76.010and this which follow: person “Any who shall have a crime while committed irresponsibility, insane, or in of mental and in a condition insanity irresponsibility or
whom such to ing mental continues criminally the mean- exist, shall deemed insane within be by chapter. of this No of mind induced the condition voluntary person charged act crime shall be meaning irresponsibility the deemed mental within chapter.” 10.76.010. RCW plea insanity irresponsibility “If the mental be or given, interposed, upon that and evidence issue be giving charge, that court shall instruct the when charged acquittal re- of the crime be in case turned, whether whether irresponsibility verdict of finding they (1) (2) special return shall also verdicts so, and if committed crime defendant insanity they acquit him of his or mental because (3) commission, the time whether at of its insanity irresponsibility continues and exists or mental (4) whether, if condition trial, the time such at of the irresponsibility insanity at does not exist or mental relapse there is likelihood of a trial, time of such irresponsible condition, or mental recurrence of the insane that the large. person not a safe to be at Forms defendant special shall submitted to for the return of the the verdicts general with the forms for the verdicts.” RCW 10.76.030. language of in full the RCW 10.76.030
We have set out protection legislature provided for the that has to show against criminally persons public insane who even of the prohibited the criminal law. acts are commit which insanity” “mental ir- “criminal is meant What consistently responsibility” It has been held our statute? thing purposes crim- terms same mean that both M’Naghten. responsibility. Collins, v. The test is State inal (1957), (2d) (2d) 660 and cases cited 314 P. 740, 50 Wn. (2d) 52, P. 185 Maish, Wn. State therein. especially (1947), clear that Wash- made it A. L. R. 382 rejected the volitional test embodied ington has impulse” rule. “irresistible so-called thorough dis- contains a The decision in the Collins case argues appellant problem. However, cussion of this language then were in that indicated we our case page question. “open-minded” at In that case on we said: frequent “Recognizing mental the wide variance everyone suffers,
or we emotional disturbances from adopted purpose judicial administration, have, for individuals various have the mental to determine whether tests or standards marry, capacity to make contract, *30 participate intelligently defense, a or to form criminal intent. Certain other in their own will, to tests standards or a society indi- take the life of an have to met will be before to death. Our search vidual who has been sentenced for practical a to whether rules that enable us determine marriage a validated, will enforced, contract should be upheld, held executed. in a criminal case conducted, a trial a defendant responsible or offense, for his a death sentence dealing, particular are we “In the area with which we proper care of the men- are of with course, concerned tally rapist; more con- ill or but we are killer, robber, security society of and cerned—and should be—with the protection offenders. The law its inquires from such offenses and peculiar mind of the constitution of into or disorders defects accused, or the mental weaknesses or solely question may afflicted, he but into the with which be capacity, act, of at the time he committed a forbidden his intent. to have a criminal question the existence of a better method to “On the right-and-wrong test, intent than we determine open mind. have an ...” any matter, as to the we shall
In foreclose doubt order to validity M’Naghten continued the issue of the discuss in this state. arguments pro proceed discussion of
Before we cautionary prefatory must remarks con, certain proper their confine issues within made order scope. argu- punishment capital issue, is not an
First, penalty against the are not death relevant for and ments jury by They both made to the counsel. were here. “ looking . . . We should be for rule that would be
generally apрlicable to survive, offenders who and that dealing constructively.” would be useful in them with Sol Approach M’Naghten “A Rubin, New Durham,” Soc’y J. Am. Jud. 133. Second, the is not or what kind of treatment punishment by persons will or convicted should be received sentencing promote of crimes. Matters will best —what society protection rehabilitation of the individual or Sentencing adopt or whether this state should the Model public solely policy Act, etc.—are matters of are province legislature. within the completely Third, the issue before us is who will be excul- pated by presence mental disease or defect. The of a mental disease or defect which falls short of criminal in- sanity may involving well be relevant the ele- issues degrees e.g., crimes, malice, ments or certain where premeditation intent An are issue. accused who has necessary capacity premeditate, may instance, suffering introduce evidence that he is from a mental still substantially which disease or defect re- defect, disease or actually premeditate probability that he did duces charged.5 (See People regard to the crime with which *31 (2d) (1959); (2d) P. 492 Gorshen, 716, 51 Cal. 336 v. (2d) (1949), People 330, 33 Cal. 202 P. Wells, 510, 43, 94 L. Ed. S. Ct. for cases 338 U. S. cert. den. formerly jurisdiction had some in which trouble on this a examining point.) the test which must be met We are present support statutes order to under our in this state guilty by irresponsibility,” finding of mental reason of “not a any completely a defendant of absolve crim- which would responsibility. inal argument considerably scope thus the nar- of
With generally arguments which are advanced most of the rowed, legal insanity changing of definition are no of in favor longer relevant. change argument that is we must take for such ad-
One jury along properly argued appellant to the these lines. for 5Counsel vantage nothing developments psychiatry. of new There is they people new about the idea that who what some know doing accept- are fact, cannot still control their actions. In people ance court of that should a law of the idea such adoption responsibility be criminal led relieved of M’Naghten (See England. of Koestler, rule in Arthur highly Hanging, chapter for Reflections on a but critical, history M’Naghten development of readable, rule.) legal why
We that there defini- reiterate is reason no insanity keep up tion of definition should with the medical insanity. meaning of term has a and a differ- The different only arguments purpose ent in each context. arguments should be are are rele- considered those degree, kind, vant to of mental what person respon- disease or defect should relieve of criminal sibility for his acts. brings argument change.
This us to the crucial for It is contended if a man does not have control over his own behavior, he has no free will and cannot blamed for society Therefore, misbehavior. the interests of both and the if individual defendant would best be such served criminally responsible defendant were held for his part It actions. the latter this is contention that we feel full merits consideration. answers this several, crucial contention are
each opinion, dispose sufficient, alone in our First, it. legislature policy has established state that only degree insanity extreme- most will relieve a liability. Any arguments change defendant criminal policy legislature. should, therefore, be addressed to the proposed by appellant extremely Second, the test difficult apply. point utility Third, from of view of social purposes M’Naghten law, criminal test is preferable the American Law Institute test. Each of *32 fully. turn, in will reasons, these be discussed more M’Naghten rule was the test criminal insan- approved by ity currently present this court when the By chapter in 1907. laws of 1909, 249, was enacted statute legislature § attempted insanity 7, the to abolish as a defense in criminal cases: person charged
“It shall be no to a the com- defense with mission of a he crime, commission, that at time of its by insanity, imbecility idiocy was unable to reason comprеhend quality committed, nature of the act wrong; or to understand that it was or that was afflicted propensity prohibited with acts; a morbid to commit nor any testimony proof shall evidence.” in or other thereof be admitted (1910), Strasburg, In State v. 60 Wash. 110Pac. 1020 only we held that statute to be unconstitutional. Thus insanity Washington reason is a defense to crimes requirements the minimum of mens rea have been by legislature’s attempt compel held this court it. insanity to abolish to us that as defense indicates policy strictly appli- established this state is to limit M’Naghten cation of This the rule that defense. does. argu- The considerations of stare decisis reinforce supra, Collins, reveal, ment. As the cases cited State meaning consistently placed we have the same on our statute. Cases since Collins have continued to follow (2d) e.g., Murphy, 355 P. See, rule. State v. 56 Wn. (1960). Rhay, (2d) also, In re Bonner v. 57 Wn. See, (2d) (1961). 670, 359 P. complete only insanity as a defense Since is available right, it has been held to be a constitutional we because beyond minimum cannot extend that defense constitutionally required. the defense is avail- Therefore, only persons contact real- who have lost to those able beyond any they ity completely are of the influ- so law. of the criminal ences insanity policy minimized defense is behind
The social explained Wechsler, “The Criteria of partially Criminal (1955): Rev. 367 .Responsibility,” 22 U. Chi. L. express penal purpose law is to formal “The conduct, forbidden buttressed condemnation social by incapacitat- prevent it—not alone calculated
sanctions correcting offending possible indi- ing far and so general imagination, impact on their also but vidual,
591 general through Considera- i.e., tions the medium of deterrence. conspire equality to demand and effectiveness generally applied be which are threatened that sanctions with generality upon that the sentence dis- conviction—not regard in individuals but or differences circumstances imposed the framework within thаt sentence Responsibility conviction. such formal condemnation and excep- theory exception. of the The criteria define a broad persons threaten and condemn tion that it is futile thus to is wholly beyond through are who range no fault of their own of this kind. So of influence of threatened sanctions preventive long any influence there chance that the as may operate, the threat. If it maintain is essential to system entire maintained, the influence of the is not diminished requisite capacity, upon those have who may they offend. albeit sometimes analysis, category irresponsible must “On problem be defined in extreme terms. is to differ- wholly persons and entiate who are more non-deterrable between by susceptible to influence less law. category burdened exculpation ordinary man, must be so extreme that by large temptations, passion and beset irresponsibilities bespeaks no weakness in the ...” law. — impulse”
The classic criticism of “irresistible applies any (such which includes also to test volition test) the American Law Institute that such a test is —is extremely apply any hope hard to of reasonable ac- curacy. In Commonwealth v. 401 Woodhouse, Pa. 164 (2d) (1960), A. 98 the court said: Impulse’ “The ‘Irresistible test also has its See decriers: Impulse Responsibility,
Davidson, Irresistible and Criminal Apr. Menninger, ‘Psychi- 1 1956; 1 For. No. Hall J. Sci. atry Review, 687; and the Law’—A Dual 38 Iowa L. Rev. Responsibility M’Naghten Law, Hall, Defense of the Psychiatry 917; and, Waedler, 42 A. B. A. J. Rules, and the Responsibility, of Criminal 101 Problem U. of Pa. Rev. L. seq. They supposing power ask, instance, 378 et only impaired, prove irresponsibility? would this resist is All men are Would strong urges subject descriptions. various Impulse’ something this reduce ‘Irresistible suggest psychopathic impos- at all? is not sible, Others that it is say impulse any particular case, that an impulse irresistible; all that can be said is that the did not appear successfully difficulty to have been ‘The resisted. distinguishing impulse between uncontrolled and the impulse that is not controlled would take too fertile a dia- Psychiatry Henderson, lectorial field’: and The Criminal Psychiatric q. Psychology Law, 103; Hamblen Smith, The Criminal, 179.”
In (1959), State v. Lucas, 30 J. 37, N. 152 A. Jersey New court said:
“Until such time are as we convinced a firm founda- responsibility tion in scientific fact that a test for criminal M’Naghten other than will serve the basic of our crim- end *34 jurisprudence, protection society griev- inal i.e., the from ” ous and anti-social acts, we shall adhere to it. . . . People (2d) (2d) See, also, v. Nash, 36, 52 Cal. 338 P. 416 (1959) , and State Crose, v. 88 Ariz. 357 P. 136 (1960). regard capacity
With to behavior, to control one’s appear psychiatric certainty would that there is no more today than there when this court decided State v. supra. Maish,
Finally, M’Naghten preferable is to the American Law M’Naghten Institute test that the rule better serves the purpose basic of the criminal law—to minimize crime in quotation society. pointed The earlier from Wechsler out M’Naghten might possibly that, used, all when is who be deterred from the commission criminal acts are included points of the criminal within sanctions law. Sol Rubin M’Naghten application rule can out that even process: help in the rehabilitation “ M’Naghten rule declares that . . . The one who is reality from does not so far removed know the mentality adjudged act does not have nature his holding responsible. is inevitable Such because of the requirement rea. But the Durham rule mens would n exculpate who does know the nature a defendant of his person respon- tell such a that he For the law to is act. sible likely complicate to deter and for his act is his re- it contradicts common sense habilitation, because fact. To n declarethat such a defendant legally responsible, is but, subject special illness, mental because of his treatment reality likely sup- and more with more consistent n port Approach 133, his rehabilitation. ...” “A New M’Naghten (De- Soc’y Durham,” J. 45 Am. Jud. 1961). cember, subject
Mr. Rubin then continues the discussion of this supports cogent reasoning. position his article and summary, only any In then, not other rule be dif- would M’Naghten good apply, ficult reason, but the rule is, Washington. the established rule in the There State (No. 33) giving jury no error the instruction based refusing any test, on that nor in to instruct on the basis responsibility requested by appellant. other test of mental Assignment No. 10: assignment, appellant pre-
In this he was asserts that having vented from the informa- fair trial as to count 1 of gave tion because the trial court instruction No.
which the was told: “You are instructed that under evidence of this killing justifiable Jumper case the of Alice was neither nor excusable.”
Appellant only contends that this instruction was not unnecessary confusing may but was because have thought applied irrespon- that it to his defense of mental sibility. argues simply He further that instruction No. *35 nullified instruction No. 10 which defined excusable and justifiable homicide. appellant’s
The state’s to answer contentions is justification that the evidence in the case at bar no showed killing Jumper, or for the Alice and hence excuse instruc proper (2d) Griffith, tion No. 11 was under 52 Wn. State (2d) (1958), seq. P. 897 and RCW 9.48.150et pointed by Furthermore, that, is out the state when the court’s are in context a whole, instructions read as jury believing could not have been misled into that plea any irresponsibility was involved or in mental killing” way “justi- with the terms “excusable connected killing.” statutory fiable Instruction No. 10 contained the justifiable homicide. definitions of excusable and irresponsibility explained mental was The defense of to jury in six instructions, three of which the acquit appellant they instructed to if found he were mentally irresponsible. The forms of verdict submitted jury clearly irrespon- showed that of mental the defense sibility be included in their had deliberations and by not been eliminated instruction No. 11. giving
We find no reversible error in the of instruction 11. No.
Assignment No. 11: assignment appellant’s mo-
This relates to the denial judgment tions for arrest of a new trial. In view assignments holdings of our ten no error, first assignment necessary. separate this discussion of Conclusion appellant’s assign- carefully each of considered haveWe light ap- record of the and the law of error in ments opinion appellant plicable are of the had thereto. We Finding record, error no reversible trial. a fair upon judgment of the trial court sentence entered must affirmed. verdicts of the several attorneys appointed court trial who were The two appellant represent trial, at his and who continued have ably appeal, performed represent have him on this express compensation. stupendous without We wish task pro- capable appreciation for their efficient and court’s rendered, finest of the tradition services fessional indigent person of a an accused profession, on behalf capital offense. hereby judgment affirmed. and sentence JJ., concur. Ott, Rosellini,
Weaver, (concurring specially) majority concur in the J. —I Hill, myself in accord with opinion. I find some However, expressed of the Su- Chief Justice Weintraub views preme concurring opinion Jersey, in a New court of says (1959), 50; 152 A. N. J. v. Lucas State 83): *36 (p. society protected dispute must be from will “No one disagreement The area of the sane. insane as well employed process be
is whether a civil or a criminal when should If could acts have been committed. we forbidden finding simply think of conviction question as a that the mortal a capacity con- demonstrated his for anti-social has duct, most the battle decided. would would be What employment post-conviction remain is the tech- such niques as redeem the if he can be redeemed would offender proposal him us, and secure if he cannot. The before how- post-conviction disposition ever, does not relate to but process rather to the be invoked to whether the criminal shall
adjudge deprivation liberty. a for basis It is in that frame of reference we are asked to abandon M’Naghten will excuse. concept insanity in favor of another which
...” Obviously, “post-conviction techniques” operate cannot quote penalty impоsed. again (p. 87): if the death I is practical purposes M’Naghten “For all the furor over disposition confined to the of offenders convicted of murder. penalty sparks quarrel. It is the death which What- may personal ever of be their thesis blameworthiness and justice thought- the individual, I think that should all persons pause judging ful would at least when a man at portal congregate of death. All doubts must there. The responsibility respect capital punishment ultimate legislative. is, of course, present statutory But there an area within the judiciary scheme in which can and divergent should move to accommodate the views. I refer psychiatric testimony jury’s to the admission of full for the determining consideration in whether a man should live or die. testimony belongs “I have no doubt that such in the case purpose. Legislature
for that I am convinced the so intended resolving controversy capital punishment when in over provided punishment. that shall fix the State (1958). White, J. 27 N. The mental condition of a inseparable just disposition— man is so from the issue just society to him and it is inconceivable that the —that Legislature intended to exclude it. integral part “The functions of the mind are an requires criminal event itself. specific law a mens rea. The necessary guilt, operations they pre- mental deliberation, meditation, willfulness, or a felonious felony murder, intent cannot be isolated from the total proof functions of the mind of the offender. To limit activity part of total mental technically to that *37 596 upon guilt part the of the event
bears itself. The whole truth ing it issue of is to conceal that in be disclosed so decid- should jurors question the of the know who life or death will necessary is is who before them. That disclosure stands judgment jurors for the must moral the reach.” “straight suggestion To this would the follow remove jacket” legal insanity psychi- concept the the of of of which deciding question justifiably complain, atrists in the so jurors of know, life or death the as Justice will Chief Wein- says, traub “who it is stands On the who before them.” guilt, issue of the issue should continue stated in to be given the instructions case. part dissenting (concurring part)— J.
Hunter, majority disposition assign- I concur with the in its all the of except ments of error those relate to the submission irresponsi- to the defense of mental defendant’s bility. these I To dissent. majority approved embodying
The have an instruction “right wrong” purposes so-called test. For the accuracy, point given by I would that the out instruction contrary assumption, majority’s court, the trial legal insanity not the exact test of as formulated Opinion Judges M’Naghten’s Case, 10 Clark & F. Eng. R.ep. (H. 1843). 200, L. The trial court instructed acquitted defendant should be if alleged at “. . . the time the crime is to have been committed, mind was diseased to such an extent that perceive qualities he was unable moral the act charged, right he with which and was unable to tell from wrong particular charged. with reference act ” (Italics mine.) . . . M’Naghten rule states: “ clearly proved . . . must be that, at the time of committing party labouring act, was accused reason, under such defect of from of the mind, disease quality as not to know doing; nature and he the act or, if did that he it, know did not know he was doing wrong. (Italics mine.) what ...” portions I do not understand the italicized of the above excerpts synonymous meaning. two to have Moreover, the language regarding perception qual- trial court’s of “moral appears substantially synonymous ities” to be with its language regarding ability “right further to tell from wrong.” Hence, the trial court’s instruction was not a complete M’Naghten statement of the rule. I will elaborate significance develop my points on the of this I observation as departure majority’s from views. fully agree majority unquali- I with the that this court is fiedly presented with the whether the defense of *38 irresponsibility persons mental should be available who rationally are, illness, reason of mental unable to control their behavior, but at who the time of the act have the capacity right to understand the difference between and wrong society’s agree in terms of I also standards. with the majority proper approach question that the to this must begin pertinent with the statutes. 10.76.010, RCW RCW 10.76.030and RCW 10.76.040have the codified common law recognized irresponsibility rule which mental as a defense charge. go to a criminal These enactments no further than recognizing irresponsibility defense of mental setting up procedures implement available, and certain Wisely, defining irrespon- it. the matter of the term “mental sibility” properly judicial untouched; was left it is a matter through process to be solved of criminal trials with expert testimony. aid legislature attempted It is true that in 1909 the to elim- irresponsibility inate mental as a defense to a criminal charge Strasburg, court, and that this State 60 Wash. (1910), 106, 110Pac. 1020 held the enactment to be uncon- stitutional. This court reasoned that the element of mens “guilty constitutionally ignored mind,” rea or cannot be irresponsibility, negates and that mental the existence rea, cannot, therefore, of mens be abolished as a defense. “right We never stated nor intimated have before wrong” and test is a constitutional minimum, and I see no legislature conclude that our reason to has evidenced a “right wrong” retain the that this state and desire test. The concerning irresponsibility, statutes the defense of mental leg- passed operate, in 1907.The under which we now were in- court, then inform this nor has since did not islature define or view the court, as to how we should formed this implementing concept defense of mental of mens rea Strasburg supra, irresponsibility. case, confirmed that of crime. The mens rea as an element cannot be eliminated concept judicial delineation of that function. (2d)
In Collins, State v. P. 50 Wn. (1957), ought govern expressed we an attitude which dispose the manner in of this issue: which we peculiar inquires “. consti- . . The law not into the or accused, tution of mind the mental weaknesses may afflicted, but disorders or defects with which solely question capacity, time he com- at the into of his act, a criminal intent. mitted forbidden to have of better method “On thе the existence right-and-wrong test, we intent than the determine that open an mind. ...” have M’Naghten rule, as laid down
I am that both convinced given “right wrong” trial test inadequate formulae erroneous are court’s instruction meaning acquainting in- of criminal (mens rea). formula that a better I am also convinced tent *39 is available. policy explained majority under- the social that have responsibility
lying maintain to criminal is the notion of persons who have those of to deter a threat sanctions right society’s by of capacity standards influenced to be disagree wrong. I with But I subscribe. To this and crime minimization of majority’s conclusion that wrong” “right test as society and retain the if we served is irresponsibility. mental If, due to mental of a definition (although he his behavior person control cannot illness, a society knowing considers to capable what of or is aware certainly conduct), the criminal law can- then wrongful “right and the and conduct to his influence as an not serve wrong” purpose. its asserted not achieve test does only requires intent not that one rea or criminal Mens society’s right capacity to understand standards of have requires wrong, capacity one also have and but knowledge understanding faculty apply of his his capacity If a course action. the latter is ab- decision as to person then illness, mental such cannot be sent due to majority, possessed rea. To use the terms of the of mens cognition, an volition, element of criminal intent. as well (1961), Currens, 290 F. in a In United States enlightening opinion by very comprehensive and Chief M’Naghten rejected Judge Biggs, the court rule aas irresponsibility conclusion, for mental and based its test ground M’Naghten part, that the on the rule does not recognize prerequisite the volitional element as a crimi- nal intent. concept guilty rea,
“The of mens mind, is based on the person assumption capacity that a has a to control his be- havior and to choose between alternative courses of cоn- though unquestioned assumption, duct. This theolo- gians, necessary philosophers scientists, to the main- only tenance and administration of social controls. It is through to assumption society possible has found it impose designed safeguard create duties and liabilities persons property. Essentially [Cases omitted.] these operate upon are intended to duties and liabilities capacity choice human and control of conduct so as to socially person harmful deter conduct. inhibit and possessing When capacity control, for choice and nevertheless duty type subjected of this he is breaches to the sanctions subjected law. He is criminal these sanctions not alone, of the act but because his failure because to exer- capacity conformity his to control behaviour in cise his society. example, For an the demands act of homicide liability, only liability varying no civil will create crimi- liability depending on the nal nature of the mental con- Generally, greater comitant of the act. defendant’s capacity clearly conduct for control and the more power appears the more severe is sanctions with acting, exercised his that he choice in penalty imposed society. Thus, law are of the criminal meted out accordance capacity society’s to conform his conduct to the actor’s *40 capacity through the for choice standards, and control which respect possessed to his act. follows, “It believe, we that where there is a reasonable particular person possesses capacity doubt as to whether a capacity of choice and control, i.e., to conform his conduct society’s standards there is a reasonable doubt as to possessed necessary guilty whether he A mind. test for responsibility incorporate analysis criminal should in- helpful by jury sofar itas is as a means can relate concept guilty dеfendant’s mental disease to mind. It should be made clear to the that the fact that mentally a defendant was diseased is not determinative of responsibility significant criminal only in and of itself but is particu- insofar as it indicates extent to which the powers lar defendant lacked normal of control and choice at the time he committed the criminal conduct with which charged. provide he is In other words test must with a verbal tool which it can relate defendant’s personality mental disease to his total means judgment.” which it can render an ultimate social and moral argued original Some students this area have that the M’Naghten ignore test does not the volitional element of phrase mens rea, but embraces that element in “as not quality doing.” to know the nature and the act he M’Naghten Irreplaceable: Mueller, See Remains Recent Incapacity, (1961). Events In The Law 50 Geo. L. J. 105 Of very appears unpersuasive, mainly This view because the quoted phrase M’Naghten put from the rule in terms of is knowledge rather than However, control or choice. even M’Naghten judges making if it be true that the were an attempt express the volitional element of mens rea irresponsibility, their test of mental that fact cannot vali- extremely date an outdated formula. Furthermore, is given by that the certain instruction the trial court in the ignore instant did volitional element of rea. case mens “right wrong” inadequate In then, essence test upon concept tool” it is based a “verbal because false psyche. It cannot stand as a of the human ing test determin- ground guilt one who defends on of mental recognize irresponsibility because it fails to what the mod- unquestionably psychology ie., has revealed, em science of complex integrated system personality human that the cognitive, emotional elements are in- volitional where *41 sepa- extricably into intertwined. The mind is not divided containing independent compartments faculties of rate M’Nagh- knowledge, test of choice. Because the reason and morality, knowledge solely ten is couched in terms of testify expert psychiatrist crimi- at the the who is called to present from a clinical views nal trial is not free to expert. proper approach an role as should be his which morality, questions upon of Instead, he is called to answer foreign and which should are to his science matters which array jury. properly the of authorities left to the See be supra. Currens, in United States cited M’Naghten problem devising the The to of an alternative concept by simple. of mens rule is The indefinite no means psychol- many questions yet medical rea, the unsettled ogy, difficulty relating and the of an understandable quest properly jury for a solution limited to a make the test McIntyre, Mentally complex. The Dis- See Lindman and uncertainty, (1961). However, abled Law, and The Ch. following paths, inevitably part should which is a of new is ineffective not cause this court to hold on to a test which jury the to the ends of to the and not conducive as an aid criminal law. irresponsibility in United forth test of mental set objections supra, major Currens,
States v. meets the M’Naghten necessary provides for the freedom rule, adequately expert psychiatric the de- relates witness, and irresponsibility in the the main issues to fense of mental ought jury follows: instructed as to be criminal trial. ground acquit mental on the defendant In order to irresponsibility you the time of that at must be satisfied committing prohibited defendant, as a result act the capacity defect, lacked substantial disease mental requirements the law which conduct to conform his alleged have violated. he on defendant’s to comment
I feel constrained also assignment the trial contends 7,No. of error jury refusing follows: instruct court erred guilty by reason you is not defendant that the “If find you irresponsibility, it not for to determine of mental responsibility what is to be done with him. That rests with Department jury.” of Institutions not with the agree majority proposed I with the that this instruction incorrectly stated the and, law therefore, the trial court failing did not jury. err in to submit However, due posture underlying of this case reasons assignment brought of error, this matter should into opinion request, focus. I am upon proper that, pleads irresponsibility defendant who mental is entitled to by way have the informed, instruction, as to procedures Washington handling in the state of for the acquitted, those who are *42 but found unsafe to large society. be at indicates, As the record case juries acutely prospect having are sensitive to the dan- gerous persons large tempted at and are to “take the law carry they may into their own hands” order to out what responsibility protect society. consider is their In order irresponsibility meaningful to make the defense of mental necessary juries one, it is to that that end be made aware of machinery provides the social controls and which the law society’s protection mentally irresponsible per- from a large. son who is unsafe to at Specifically, pleads irrespon- the defendant who mental sibility as a in- defense should be entitled to have the following: (1) Upon jury findings formed of the that he guilty by irresponsibility is of mental reason such mental condition still exists or that because of the relapse likelihood of or recurrence he is unsafe to be at large, the court will order the defendant committed as a (2) person criminally person. A so committed insane shall discharged upon compe- the order of a not be save court judgment jurisdiction after a trial and of dis- tent made (3) discharge may only charge. An be entered order county jury in the court of the a trial after before person found that is a safe him, committed wherein large. 10.76.040, 10.76.060, RCW 10- RCW at RCW to be .76.070. judgment conviction and remand
I reverse would for a under the case new trial instructions appropriate herein. consistent with views expressed J. J., Foster, J., Hunter, C. Finley, concur March Petition for denied. rehearing 1963. Department September 27, 35748. Two.
[No. 1962.] Murphy City Tacoma, Don D. al., et Appellants, v.
Respondent.* *43 Jr., Burton for Lyon, appellants. W. Nolan, Paul R. McCormick, Quinby J.
Marshall Bingham, respondent.
*Reported 976. 374 P.