*1 proof its burden to sustain failed specific Luick’s did show
that it companies. insurance to defraud the
tent was unaware of the
Clearly, if Luick defraud, his innocent act scheme (cid:127) claims to the
mailing proof of loss de- sup- companies cannot insurance
frauded jury’s verdicts. guilty
port
III. sus- failed to
Because convic- proof, its burden of Luick’s
tain reversed, all counts will be tion on will and the matter be vacated
sentence to the district court for
will be remanded
entry of America,
UNITED STATES Plaintiff-Appellee, McGRAW, James H.
Defendant-Appellant. 74-2388.
No. Appeals, States Court Ninth Circuit. 1, 1975.
May *2 was insufficient evi that there
ity and finding dence remand. reverse and We 28, 1973, On November McGraw en- Angeles tered the main Los branch of First Western Bank and handed a note to a teller which read: “This is a stick-up. your money. Give me all you.” complied Thank She and he left. On afternoon of December he F.B.I., called the robbery, admitted the described himself and advised that he day, would surrender the next which he did. trial,
During the defense called two psychiatrists. Both testified that at the robbery, by time of the bank reason of defect, mental disease or McGraw lacked appreciate substantial wrongfulness of his conduct and to con- requirements form conduct to law, explaining the reasons for their con- clusions. rebuttal,
In prosecution called one psychiatrist. examination, On direct psychiatrist testified that McGraw was ill, mentally but possessed that he sub- stantial Zeitsoff, Deputy Federal P. Vernon wrongfulness of his conduct and to con- Angeles, (argued), Los Defender Public Cal., form his conduct to law. On cross-ex- defendant-appellant. for amination, however, psychiatrist Resich, Jr., Atty. Asst. U. S. John J. qualified this initial conclusion to mean plaintiff-appellee. for (argued), that
wrongfulness of his conduct in the sense that he could that society understand OPINION wrong. psychia- considered it to be WALLACE, ELY Before if TURRENTINE,* Judges, District meant moral ness, legal rather than wrongful- Judge. possess McGraw did not substantial wrongfulness Judge: WALLACE, Circuit of his conduct. conviction from his appeals In Wade v. United in violation robbery bank for (en banc), we held at trial 2113(a).1 His defense § U.S.C. purposes insanity for de sane at was not was that fense, “wrongfulness” means moral appeal, he ar robbery. On time of rather than criminal erroneously court gues wrongfulness. of insan on the issue instructed erroneously refers * case in this 1. The Turrentine, United Honorable Howard B. 2113(a) 2111(a) than section to section rather Judge, District of States District Southern Cal- (and in both briefs in the indictment as stated ifornia, sitting by designation. appeal). filed on testimony on the defendant’s approving the A.L.I. formulation cross-examination; (3) rely upon evi defense], we note that [of jury may which infer dence from adopted the word Circuits have three “wrongfulness” (the the defendant’s suggested A.L.I.’s depends upon view of the an incorrect alternative) place “criminality” in *3 Otherwise, sanity evidence of criminally facts. the exclude the order to from who, support a conviction. is to responsible category those know- insufficient Shackelford, criminal, v. 494 F.2d United ing to be committed it States an act denied, 67, 70, (9th Cir.), 75 cert. 417 the a delusion that act was because of 69 — 2647, 934, 41 237 94 L.Ed.2d likewise U.S. (1974); S.Ct. morally justified. We believe Cooper, v. 465 “wrongfulness” pref- United States that the term is 1973). 451, (9th None F.2d 453-55 Cir. erable. three was satisfied in of the alternatives (footnote omitted). at 71 — 72 A total Id. this case. other circuits have now taken of five Freeman, v. position. this United States psychiat government’s When the 1966); 606, (2d 357 622 & Cir. F.2d n.52 that, under what we expert ric testified States, 908, 407 Blake v. United F.2d definition of proper hold be the to banc); (5th 1969) (en 915 — 16 Cir. United lacked “wrongfulness,” substan McGraw 680, (7th Shapiro, v. F.2d 686 States 383 wrongful to the tial 1967) (en banc); States v. Cir. United conduct, government was the ness of Frazier, 911, (8th 458 F.2d 918 & n.7 testimony that expert left no with 1972) banc); (adopted en Cir. United see Thus, capacity. possessed such McGraw Brawner, 1, U.S.App.D.C. States v. 153 psychiatric experts in effect all three 969, (1972) (en 471 991-92 & n. 40 F.2d appreci not agreed that McGraw could rule, banc). we the interpret As a de wrongfulness of his conduct. ate the ap fendant lacks substantial psychiatrist was shaken One defense preciate the of his conduct opinion from this on cross-examination if he knows his act to be criminal but no only that had but he admitted commits it because of a delusion that it on The testimo firm the issue. morally justified. is remaining issue of the defense on this Thus, the conclusion the initial of government’s psychiatrist, and of the government’s psychiatric expert unchanged. was Fur psychiatrist, own wrongful the thermore, although lay testimony on the upon depends ness of his conduct an er was that McGraw the of issue interpretation roneous of the law of in of rob normally acted bery government Counsel for the also thereafter, psychia the defense upon arguing relied in the same error appearance of spite jury. case to the of this with conclu normalcy was consistent despite request, conflict and McGraw’s legally McGraw was insane sion that the district court refused to instruct the govern robbery. the time of “wrong on the correct definition testify on this psychiatrist did ment’s fulness.” a Since there was diametrical issue. ly opposed pertaining conflict to the proper definition of no government introduced Finally, jury, it never was clarified to psychi- lied to the evidence that McGraw be best, only McGraw’s conviction must reversed. atrist. At possibility in cross-examina- raised this government’s The mistake psychiatrists. tion the defense psychiatrist has a consequence. further that no evidence rebuts We conclude the defendant has introduced suffi Once expert two wit- testimony of at least expert testimony cient a rea defined, that, properly as nesses sanity, the govern sonable doubt as (1) lacked substantial ment must: its own introduce his conduct. rebuttal; (2) wrongfulness of in discredit
761 ny, including government presents physician When the that of presented by leads, prosecution, evidence of we some ine- insufficient luctably, to judg light that conclusion. In the entry times dismissal or order of the testimony, v. unrebutted United States Cooper, establish, and, supra, 465 F.2d at Government could not United White, 796, (9th my opinion, establish, v. 447 can beyond States 798 never doubt, 1971); Cir. appellant Hartford United reasonable 63, (9th Cir.), denied, 362 F.2d 67 cert. was sane at the time of the rob- 883, 174, Thus, bery. 87 S.Ct. L.Ed.2d 110 I would respectfully suggest U.S. (1966); judge remand, Buatte v. to the upon 330 F.2d district 342, (9th Cir.), denied, rehearing the indictment should be dismissed. See (9th 1964). However, Howard, F.2d 848 Cir. since 432 F.2d govern (majority we are not convinced that concurring *4 opinion). I would not anticipate could not introduce testimo that the Government, acting responsibly, of McGraw’s would undertake, Cooper, supra, time, 465 F.2d at Buatte this late to seek out 848, another supra, medical witness might F.2d at who con- tradict appar- we leave this issue to be determined ini of the three ently reputable tially by physicians court. who have al- ready expressed under Reversed and remanded. the test of Wade v. United cited ELY, in the Judge (concurring): majority opinion, McGraw was not sane when he committed the robbery. record, It seems to me that con- whole, establishes, beyond With the comments, sidered as a addition of these question, I analysis that McGraw was concur in the careful set forth by my sane eommited the al- Brother Wallace in the majority leged opinion. offense. All of the testimo-