*1 866 inherently is not an
slaying family, of the members of illogical explanation tragedy. appellate an reweigh It court to is not the function support there when is substantial evidence (People Hillery (1965) v. of the trier of fact. conclusion Cal.Rptr. 30, 382]; 401 P.2d 692, 702-703 Cal.2d (1960) 167, 358 P.2d Robillard Cal.2d 1086].) Neither case a bizarre nor 83 A.L.R.2d what paradoxical justifies appear departure may result some be fundamental Reliance from rule. should not this Wolff emotionally parricide unstable employed to absolve from be supports where evidence guilt murder of first sanity accept issue, “to judgment. we said As Wolff judi creating by thesis be tantamount would guilty by plea of ‘not reason schizo cial a new fiat defense ” arguendo (assuming that it do so were within phrenia. To apparently law and power) would be bad still worse our p. 815.) (61 medicine.” entirety. its I affirm would concurred. McComb,J., 23, 1967.] In Bank. No. 8313. Feb.
[Crim Respondent, PEOPLE, Plaintiff THE ROBERT Appellant. Defendant and NICOLAUS, HENRY *3 Quentin Kopp and Alvin Goldstein, L. H. Jr., ap- under pointment by Supreme Court, Kopp Skinner, & Goldstein, Eisenberg Kopp & Skinner Gilbert Defendant Appellant. Lynch, Attorney General, Maier, Thomas C. Doris H. As- Attorney General, Haws, and Edsel Deputy sistant W. Attor- ney General, Respondent. for Plaintiff Henry BURKE, J. Robert Nicolaus was convicted jury on counts in a of first murder three trifurcated guilt, sanity penalty. the issues of He had killed *4 by shooting times in head. his each several three children of jury The found defendant sane at the time the offenses and imposed'the penalty. a new trial and to death Motions for appeal denied. His
reduce of offenses were (b), us is automatic under section before subdivision Penal Code. daughter had Autopsies gunshot Heidi four revealed had and Donald each three. Heidi wounds; Roberta wife, defendant and his Roberta and Donald daughter Lisa; marriage former common children law to Jean were Lara. May approximately 24, 1964, at A nurse testified brought emergency room of a.m. defendant Hospital at Lake Tahoe for treatment. De- Bart Memorial her, my “I a confession I said to to make. killed fendant bought toys them make He said he three children.” ride, a happy, them for had them climb into the them taken key lost, for a he he had trunk of.the car to look told them toys evidence and other were found and shot them. day a field in Rio Linda about 180 feet homicides roadway. made The statements the nurse were off the by her; any questioning police no officers voluntarily, without made. present the statements were were when September 1960, children, and In defendant’s Roberta Lara, de- living their and Donald, with Jean mother sought legal Defendant former common law wife. fendant’s custody their and then counsel testified advice to secure him felt that Jean ivas trial that defendant advised he im- being raised and that the children were immoral him that proper Counsel informed he would environment. proper a into life and establish home improve his own have to the children could be received. which wife, de- Nicolaus, testified that she met Lisa together during 1961; they six months went about fendant they pick up Roberta and Donald on weekends which would someplace; very fond and take defendant ivas them children; generous was most concerned about with his he subjecting them; mother them he their Jean believed all psychological physical abuse, of which mistreatment considerably; and Lisa decided a upset defendant they married, improve themselves, Lisa would plan; get would money; get job, high school, would save defendant finish custody someday upright obtain they lives would lead September Donald; and Lisa married defendant Roberta years in accordance lived 7, 1961, and for about three drink- Heidi; had been child, plan; had a their steady got job, but, thereafter he heavily ing before *5 part-time did quit also, penuri- he drinking; work but lived spending nothing except ously Lisa, with necessities; for bare eventually they debt and out of were able to save some however, testified, money; she she became dissatisfied with frugal thought they such a existence and should be able to money arguments spend themselves; some on occurred fre- quently May 22, and day over this issue before homicides, going she told defendant was she to leave him. began When left for pack personal defendant work she to her help with her effects, mother, putting them in the car; again mother’s defendant came home about noon, asked leave, expressed to and living her not concern about her with her mother whom he considered immoral and unfit to be closely child, Heidi; in contact with their there was conversa- gun; packed tion defendant’s she had gun about with her placed belongings and her car; mother’s defendant gun found the there and threw it in the trunk car; his own he her her apartment; followed to new told he her he wanted verify going was she to live with her he mother; returned later and and took her Heidi to a restaurant for dinner; he told her savings he had withdrawn his from the and bank, going to enroll at College Sacramento State public and take a speaking someday course because he felt “sway he would bling the crowds and the masses would be trem- morning at feet;” picked his the next he her and Heidi up and went to the Jean and picked up home of Lara Roberta and Donald. pictures He said he wanted to have their taken. He took them for breakfast, to restaurant returned Lisa to her apartment, and then left with the children. p.m. parked Other witnesses testified that at defendant open apartment
car field near some houses left it there. Woodworth, sister, Laurie Lisa’s testified: On the after- May apartment
noon went saying defendant to her he looking Lisa; talked; for he and she drank beer unusual, rambling incoherent; demeanor was always custody he had he said wanted to obtain said, “Well, but this be; children now could never she . . . you may get your children, you not ever two older Heidi;” said, “No, Lisa and I don’t have Heidi ’ ’ anymore. His wife testified that he later the afternoon found her apartment; at her told he had the children her left with happy babysit who was see them and to him mother they Stateline; Lisa and her mother to went while he took friendly during ride defendant Stateline always mother, whereas he been hostile toward Lisa’s her together all previously; he said he wanted them to “work and asked questions; childrenhe cried unusual he save the heaven; going die, and felt he was asked about said he sing hymns; occasionally and her mother to asked Lisa arriving appeared paralyzed; to become Stateline out; sick; and went defendant said he changed they felt clothes lay in where he went to the motel bed returned sleep” following morn- night; “half for the rest of the *6 weak and could ing, May move; defendant felt Lisa hospital a and defendant was taken to called an ambulance registered he made before-related confession the where to nurse. guilt phase gravamen the trial on the was the issue Accordingly, first premeditation and deliberation. prosecution, defendant, defense, a matter of and then the as respect testimony psychiatrists rebuttal, with in introduced capacity reflect and Each of the to defendant’s deliberate. trial had examined defend- psychiatrists who testified cooperative fully and that he was communica- ant and stated they history included a case which tive. Their composite and in indicated: from defendant elicited religious upbringing. young had a strict When Defendant smoke, go girls. joined the drink or out with He air he did not junior finishing year college. At one this time after force his he and Marxism and changed; embraced atheism attitudes experience began and chase women. One homosexual to drink receiving discharge an undesirable ultimately in his resulted got air he returned When he out of the force from service. Nazism, Hitler, college, interested admired became speeches him, like and collected books himself considered wear armbands wife and children him. He wanted his about could talk about how he on them. He would swastikas with people. and feed thousands of bread walk on water break psychiatric of the Sacramento in the unit hospitalized He was wife commonlaw County Hospital in 1956 at behest trying baby. kill reportedly him of had accused who gradu- yelled He that he was Frankenstein. had Defendant receiving College State ated from Sacramento into a He entered and social sciences. psychology bearing Lara, Roberta relationship with Jean common law relationship kept mother terminated and Donald. The the children. Defendant was concerned about this because he unfit gone considered mother to raise She had them. to live had an ex-convict molested of her with who two children, and happen might he feared that it to his own children and that they grow up to delinquents; would be his former common frustrating law wife was forever his desires to visit and be the children. with When to leave him plan Lisa decided defendant felt his
securing thought had failed; his children he he would never able to save his children from be their environments which he intolerable; all his considered earlier efforts wasted. He began drinking—this May was on drank 22—and so much morning that he became ill—he was still ill the of the homi- bring He decided would cides. he the children ato state of happiness and kill extreme them. At the time of killings, he asked the children climb into the trunk of his car and key had find a that he told them he there. lost He decided he kill in the order in wanted to them which were born, so according trunk he them climb into the to their ages, and strength them, emptying his last bit of he shot gun expression and as a second time to make sure last of his ulti- pain just He said felt no limp. mate love. went parked open Then he drove home. He the car field dripping because he noticed blood from trunk. He noticed changed them. on his clothes blood respective expressed psychiatrists In summary, the conflict- ing opinions capacity premedi- on the issue *7 killing the tate of his children: George O’Brien, psychiatrist by defense, Dr. called the opinion suffering that in his defendant
testified was from a paranoic schizophrenic type prevented of reaction the which premeditating him from when he killed the children that in (cid:127) opinion anyone his was psychotic; who followed Hitler that intentionally anyone shoots his children in who the head provocation legally necessarily insane and without unable premeditate deliberate; and that the defendant’s “affect” inappropriate—he happy and was and cheerful denied was wrong in having anything killing the children. done Dr. opinion the defendant was delusional and ’Brien was of the persecution killings had ideas and at the time had auditory and hallucinations. visual psychiatrist, Galioni, Dr. the second defense testified Elmer impairment opinion had a that his defendant mental ability although destroy did not his to deliberate or that it ability plan his his the actions terms of interfere with impair . . objectives he reach did . which wanted to “[i]t impact ability upon these to evaluate the actions ... his . . . . . . not objects his was able to the actions [H]e [i.e., killing impact that this the would assess the children] upon upon children, of the children and mothers that at time fully himself.” Galioni believed upon Doctor an shooting the felt that “this was extreme defendant anger, . . act of and that he felt . rather than an act of love saving children from the his environment that he would be ’’ fighting his he all own life. that has been psychiatrist, Mitchell, third defense testified Dr. John appeared an “to have committed that act which defendant impulsive unplanned in the act. While depression was more nature impaired insane, his legally his mind was point hangover his to the where and intoxication point he saw impaired. At no other alternative solu- tion, acted the conviction that the children were and he their ... living than mothers. better dead I believe off mentally impaired emotionally disturbed or to the he was impairment point it acted as severe his think- ing.” prosecution rebuttal, Rapaport, Dr. called testified premeditated opinion killing
that in his before thought going do, he over children in that what he was cons,” pros and how he “the should do He was it. doing. aware of what he was He emo- conscious and mentally tionally ill did not unstable but not have hallu- (apparently killings). the time of the cinations or delusions killings laboring “he under the When he committed pressure fact had now all that he lost of his children their . . . feared their environment with mother e[h] ’' might up like grow would become he prostitutes; [her] “just completely lost, gone, that his dreams were felt just And plans gone. he felt that this was the end.” His were feeling plan leaving him and his that his life had wife’s cause decision kill the failed of his children but impair ability rationally did to make that decision carry it further after out. doctor testified deliberation and that was that defendant loved his children it planned finally “thinking that what to do was the best recognized . . . e the evilness of the act for itself, children. [H] felt that the fact was best for them ’ ’ overcamethe evil. *8 by that Peschau, People, also called testified John Dr. premeditated opinion killing before the chil- excessively; fact, he he considered what dren. In deliberated thing was, believed, what as a for the children he the best right killings had a to do. At the time parent, he thinking “clouded,” and he “wasn’t func- was topnoteh quality” because he been drunk tioning at further that night Dr. Peschau testified defendant was before. did suffering problems, from emotional that he not consider personality was not defendant’s abnormal and whether or was directed towards consideration his “examination if psychotic, psychotic, not he was whether or insane. personality And consider whether not his I did not or major mildly way.” in a abnormal or abnormal Like Dr. Rapaport, Doctor Peschau concluded defendant “had doing come to conclusion that what he was was the best thing children, to save them from what for the he described as And with hell life. that conclusion he was comforted and compulsion go able under the influence carry out so that he wouldn’t have think any about it And more. ’’ so he did. prosecution produced
The made a motion that the evidence guilt on the sanity phase. issue of be admitted unopposed granted. motion was addition, In Doctors Peschau Mitchell, psychiatrists called People, testified that defendant was aware of the quality nature and of his acts and knew the difference right and wrong between he when killed the children. lay Three witnesses called the defense testified that in opinion their They defendant was insane. based their conclu- sions on his behavior which considered irrational. He frequently made he statements; irrational would say he was perform like God; that he could miracles and control the
world; devoutly he believed way Nazism a life, as some- abnormally times he reacted violently commonplace everyone occurrences; against believed him; he felt his trying mother-in-law was up to break his marriage and made May violent threats to her. On and 23 unusually he remote; calm and he talked about conquering the world; money. was lavish with his trip On the cried, Stateline he begged forgiveness, asked wife and sing mother-in-law to religious hymns. He could he was eat; clammy, cold and perspiring. that: contends Defendant *9 verdicts of murder to sustain is insufficient 1. The evidence second, degree. than the first, the rather in prejudicial error its instructions court committed 2. The M’Naughton rule. upon the based expert psychiatric prosecution’s foundation 3. The prejudicial inadequate its admission was and evidence error. by Do- Rapaport was barred testimony of Dr. 4. The Cal.Rptr. Dorado, 169, 338 62 Cal.2d v. (People [42 rado rule excluded, by sponte, sua have been and should 361]) 398 P.2d the court. the murdered photographs of prejudicial of effect 5. The reception probative value their outweighed their children error. into evidence was expressing prejudicial error prosecutor 6. The committed during argument. opinions personal prosecutor to cross- prejudicial error for the 7. It expert the witness’ belief psychiatric defendant’s examine argu- during improperly comment thereon" in God ment. prejudicial error bar cross-examination 8. of Dr. It was sanity. Rapaport on issue of prospective jurors deprived voir dire examination 9. The jurors impartial trial, fair and because a ‘ ’’ ‘death-qualified. expressed “doubt,” having the issue of 10. The court pursuant present sanity tried should been Penal section 1368. Code aid of
11. was denied the effective counsel. Defendant record discloses that defendant was A of the entire review trial, impartial no substan- a fair and there was accorded by plea guilty reason of error on the issue tial supports adequately insanity, and that the evidence sanity. jury’s as to verdict However, contention, the defendant’s first that the evi
1. first, murder insufficient sustain verdicts of dence is presents second, degree, problem. a difficult than the rather recognize every presump relevant and tenable We indulged sustaining judgment in favor of tion is to be People Wolf, as in the v. court; case 271, 959], 795, Cal.Rptr. 819 394 P.2d “when a 61 Cal.2d [40 (Pen. appears Code, 1181, 6) subd. we do not proper case § modify to murder of the second hesitate to
877
affirm it as modified.”
Defendant’s defense was
‘‘
responsibility,”
accurately desig
diminished
more
that of
(see People
capacity”
Anderson,
“diminished
nated as
Cal.Rptr.
351,
763,
ample any person time normal maturely appreci- to and atively upon contemplated Ms reflect act and to arrive at a cold, premeditated and deliberated conclusion. He did this in apparently a capable. to full sense—and extent of which he was this defendant was indisputably record, But, on the fully mentally mature, and not a normal or person. well right He and wrong; knew the difference between he knew wrong act intended and nevertheless carried it it understanding, upon But the extent of his out. reflection consequences, enormity its with realization of the of the evil, materially—as appears apprais- been relevant to depravity—vague turpitude moral ing quantum of his analysis [People Holt think that our We and detached. 21)] minimum essential (153 P.2d Holt, 25 Cal.2d respect especially in degree murder, first elements of quantum reflection, turpitude comprehension, and Legis- by the precisely that the use offender, this case: fits conjunc- premeditated’ in deliberate, and ‘wilful, lature of element of require as an essential intent indicates its tion substantially more (of category) first reflection; murder comprehension of the understanding and i.e., more thought neces- mere amount of than the character the act ’’ kill. sary to form the intention again all of the evi necessary to set forth It is not and at mind before bearing upon defendant’s state of dence Although found to be killing his children. time of the legally sane, testimony estab nonexpert expert both the person a normal was not conclusively that defendant lished emotionally. mentally or either opinion defendant expressed Rapaport Doctor case notably from the However, absent mentally ill. opinion was are upon based by him which history related and abnormal previous bizarre defendant’s any references to upon by the relied histories given in detail conduct court-appointed. of whom were psychiatrists, two defense only is not actions abnormal testimony as to these Their by the evi- is substantiated in the record but uncontradicted witnesses. of other dence psychiatrists prosecution were of the view that Both premeditate did deliberate and kill- could expressed opinion as to the extent of ings, neither maturely meaningfully ability reflect contemplated People Wolff, act. In gravity quite 795, 818, it clear that the defend- supra, 61 Cal.2d ability kill a limited extent the intent to and to ant had the *11 concluding that court, in the This premeditate. degree murder, first to second stressed reduced from should be degree depends controlling as not alone on issue that the killing quantum on the the but also the character personal turpitude of the actor. in ease and the law as stated Upon facts of the instant the supra, 795, satisfied that the Wolff, 61 we are
People Cal.2d v. finding support that the murders were of fails to evidence amply conviction of second sustains it the first degree murder.
879 2. Defendant contends California version of the M’Naughton deprived him fair rule of a trial the issue of urges adopt this sanity, court the Durham rule (Durham States, App.D.C. 94 United 228 F.2d 862, v. [214 1430].) However, recently 45 875, A.L.R.2d as as in 795, People Wolff, supra, v. 61 803, Cal.2d this court said: repeatedly M’Naugh in years, “As we have stated recent (of course, applied as in ton test evolved the California integral part ‘an rule) legislative has of the become scheme appraisal responsibility of criminal in California and ’ ’’ change Legislature. any come therein should from expert in 3. Defendant claims error the admission of the testimony prosecution Rapaport witness Doctor because single testimony was such augmentation by acquainted interview based without supplemental persons interviews with other defendant,
with the
or other outside data. Doctor
Rapaport’s
approximately
with defendant was
interview
training
hours in duration and the doctor’s
experi
three
psychiatry
In People
ence
Delhanti,
the field
extensive.
v.
1066],
physicians
163
461
P.
Cal.
one
[125
days
who testified had observed
defendant for an hour six
prior to
held
trial. This was
sufficient.
Furthermore,
although
issue,
we have considered the
foundation
is note
objection
worthy
ground
that no
on the
of insufficient founda
interposed by
trial,
ohjection
tion
appeal.
need not be
considered for
first time on
4. Defendant contends that the
Rapa-
of Doctor
port
by
barred
(People
the Dorado
Dorado, supra,
rule
v.
338)
62 Cal.2d
and should have been excluded,
sponte,
sua
by
objection
similar
court.1 A
was raised in the recent
case
Spencer,
400,
Cal.Rptr.
In re
63 Cal.2d
412-413
753,
[46
406
33],
presence
P.2d
in which we held that “the
of counsel at
psychiatric
constitutionally
is not
required
examination
so
long
safeguards
as certain
are afforded to defendant.
. . .
submitting
to an examination
“Before
court-
appointed psychiatrists
represented
a defendant must be
knowingly
intelligently
counsel or
right.
have waived that
Defendant’s counsel must bo informed as to the
began
Illinois,
instant
Escobedo
1The
ease
after
v.
378 U.S.
977,
1758],
84
478
L.Ed.2d
S.Ct.
was decided but
before the decision
Arizona,
694,
in Miranda v.
384
436
was rendered
U.S.
L.Ed.2d
1602,
974],
People
10
S.Ct.
A.L.R.3d
The rules
Escobedo and
v.
338,
Dorado, supra, 62
but not
Miranda
those
are therefore
applicable
(Johnson
Jersey,
here
U.S.
New
719 [16 L.Ed.2d
1772];
Hollins, ante, p.
S.Ct.
681 [56
221]).
*12
psychiatrists.
(See
v. Price
such
appointment of
(
882 sanity phase, to be cross-examined at mony having time of testi- phase, such a been admitted on motion for procedural lapse prosecution, but to the rather attributable to the defense. 9. Defendant contends that the voir examination dire prospective jurors brain-washing a technique, constituted court, “death-qualified”
sanctioned select a jury, impartial a fair denied defendant trial. Over pages interrogation jurors 20 are to demon recited purported overemphasis placed upon strate the freedom of jurors impose penalty. the selected the death recognizes repeatedly court Defense counsel this has right prospective prosecutor held a has ascertain from jurors opinions entertain whether or conscientious against capital citing punishment, 8, section subdivision People Mitchell, 353 Code; v. 61 Cal.2d Cal. the Penal [38 People Rptr. 726, 526]; Spencer, 60 64 392 P.2d v. Cal.2d People Ketchel, Cal.Rptr. 782, ; 383 P.2d 134] [31 Pike, Cal.Rptr. 538, ; 381 P.2d 58 Cal. 394] contends, 2d Defendant 656]. overruled, complaining, be however, that cases these should jury death-qualified jury not constitute effect, that a does questions guilt-innocence answer peers; that cannot one’s *14 favorably defendant; impartial it cannot as to that be the punishment conviction; of in the event of the nature that pattern of jury room a attitudes charac- does not take into the jury community large; that such a is au- of the at teristic disposed to not humanitarianism. thoritarian in nature and only for reasons untenable, the stated Such contentions are juror one foregoing eases, specifically, in were even the imposition of the death opposed to policy to committed a justice in murder of rendition penalty proper in a case subject, could on the presently our statutes defined in cases, as falls within change in such law Any be nullified. fundamental legislative domain. entry for at the time defend In the trial court 10. requested a continu one-week plea public defender ant’s report.” awaiting The one medical court ance inquired I am “because yet appointed and stated any psychiatrist been if adding, “It psychiatrists, guided by such that would be problem.’’ From such case—quite a very in this questionable sanity that a contends italicized statement counsel should pursuant to at time section 1368 have ordered been during provides any that “If time the Penal Code which pendency prior of an action and a doubt sanity arises as to the defendant, the court must order question sanity as to to be determined a trial court jury, jury. (Italics without a or a added.) ...” In the instant case the court had also asked the question, you got enough your reports “Have in for express me to a ’’ present sanity query places doubt—as ? Such the case directly application under the Ashley, 59 Cal.2d page court which the stated at Cal.Rptr. 16, “Certainly judge, particularly 379 P.2d : in a 496] case penalty may where the death imposed, legal be has right expert to seek assistance to inform him toas mental condition required express of the defendant before he is whether he has the ‘doubt’ as to that condition as term is used Accordingly, section 1368.” no error is involved because of the court’s remark. charges
11. Defendant’s that at the trial level he was denied the effective aid He counsel. indicates 12 instances of the purported ineptitude trial counsel’s now viewed in retrospect. regard In this remarks of the trial helpful. court are referring stated, court point defense counsel during at a the trial when the absence of a witness necessitated a continu- ance: “Mr. McDonnell, you great I have known for a many years, private as prosecutor, as a counselor and public as a you my defender, complete confidence. You have everything possible done justify years confidence you have been before your the bar. I have confidence in ap- proach you working to this I diligently case. know are as as you can, you working and I am sure are the interests of this Your experi- defendant. conduct of the case is based on going twenty years. you apologize. ence back some So need incidentally.” I record, (Italics state that added.) The record indicates that defendant did receive the effec important guilt tive aid counsel. The sole defense on the capacity was that of diminished issue introduced a and defense counsel considerable amount directed argument subject. this issue delivered extensive on the In principal upon by defendant, People Ibarra, case relied Cal.Rptr. 863, 847], 464-465 386 P.2d deprived of a rule of law defendant of a counsel’s unawareness *15 crucial defense was omitted crucial defense. No counsel the instant case. reducing degree judgment modified The is degree and, modified, as so is to murder of the second crimes affirmed. The cause remanded to the trial court with direc- judgment arraign pronounce tions to on defendant foregoing ruling. with the accordance J., Peters, Tobriner,
Traynor, J., J., C. J., Sullivan, concurred.
MOSK, J.I dissent. substantially legal problems This ease involves the same as p. Peoples. (1967) ante, Cal.Rptr. 625, Goedecke 777, and I reach the my therefore same conclusion as ante, p. Goedecke, 862. dissent (1964) Unlike 61 Cal.2d 795 [40 Wolff 959], in which 394 P.2d the mental condition of the indisputably shown, sharp (as defendant was here there awas con- expert testimony. guilt phase flict in In distin- guished penalty sanity phases) psychia- from the three strongly supported theory trists diminished hand, Rapaport Pesehau, Dr. and Dr. capacity; on other prosecution, found defendant able form for the required to the intent murder. for first following appear Rapaport’s in Dr. conclusions testi- The mony: capacity premeditate to defendant “had mental killings”; he prior to the actual was “aware of the deliberate planned do”; consequences of what he nature and conclusion”; and to form a and to deliberate “able to reason ‘‘ distorted, in the that it was clouded sense mind was his things which should not been blotted out or that were “judgment clouded to extent out”; was not his blotted ability form a conclusion or interfered with his that it deliberate”; “I think he don’t “he did judgment”; fact, mentally ill”; “not impulse”; he was irresistible had an disintegrated”; “he still be not to personality his “I found feelings perhaps a little personality”; “his his retained But average not to .... than the by emotion colored more wrongfulness of realized the illness”; “He of mental extent it, society looks at way according doing, he was what recognized the written”; “He way are according laws enormity the deed.” testimony of Dr. from are following quotations do going what he deliberated “had Pesehau: thing best whether trying to decide extent, great a children”; alcohol “the rights to do to his according clouded had night before consumed
885
ability
to
his
somewhat,
not to the extent
interfere with
but
ability
prevented
being
his
from
premeditate”;
the alcohol
carrying
“top-notch quality,
on”;
but it still
be normal
would
enough depression, however,
“He did
to interfere
not
ability
function”;
thoroughly
“he had
with his
considered
necessary
do and
what he had to
what
for the welfare
“ability
children”;
meaningfully
he had
his
reflect on
everything
did”;
impairment
point
his
he
“not to the
making
impossible
decide”;
toxicity
for
him to
his alcoholic
functioning] appreciably”;
“would not interfere with [his
suffering
problems. They
“Mr.
Nicolaus
from emotional
are
problems
emotional
at the neurotic level and
do
interfere
ability
function,
his
do
interfere with his
ability
adjust”;
recognition
had
he
and a realization of
enormity
contemplated
of the evil of
doing
the act
children;
already
connection with
“He had
considered
quality pro
long
and con for a
time before, and so he then
carry
carefully
able to
out
thought
what he
out and
designed
what he had
himself
do. He
did
then
that and
depressed
later became
and remorseful over what he had
done”;
capable
thinking
“He was
about
changing
it and
opinion
point
up
pulled
until
trigger.”
where
divergent
weighing
In
conclusions of the five experts,
adopted
premises
jury apparently
the
port
Rapa
Doctors
foregoing excerpts
and Peschau.
from their testi
mony
adequate evidentiary support
indicate
for the verdict.
Goedeche,
this,
is a
tragedy,
While
like
bizarre
that circum
appellate
justify
stance alone does
court substituting
its
evidence for that of the
view the
trier of
(People
fact.
Hillery (1965)
692,
62
v.
702-703
[44
382];
(1960)
P.2d
Robillard
I would affirm
McComb, J., concurred.
MEMORANDUM CASE 491] Ang. 2, 1966.] In F. No. 21871. Bank. [S. YAROVIKOFF, of KOSMA S. Deceased. SERA Estate *17 al., Respond PHIMA S. BACHTINA et Claimants Objector CALIFORNIA, Appel OF ents, v. STATE lant. Lynch, Attorney General, C. Elizabeth Miller Thomas Deputy Attorneys
Ralph General, Objector Scott, W. Appellant. Dreyfus
Garry, & McTernan and Francis J. McTernan for Respondents. Claimants TOBRINER, J.This case raises the same issue as that Larkin, p.
posed ante, Estate controlled our and is decision that case.1 473] Accordingly, we affirm the of the trial court entered Attorney distinguish present by noting 1The General seeks to ease ¡Republic here involved are residents of the that the beneficiaries Armenian in Larlcin the U.S.S.B. He contends that the record insufficient finding reciprocity Bepublic support a with the Armenian because the from, text of Article which was introduced that case was taken B.S.F.S.B. code of the Attorney experts record refutes the General’s contention. All of Larlcin, including expert whose was received called Attorney General, Bepublies stated that the codes of all of the incorporate the Soviet provisions (See Gsovski, 8. also 1 of Article Soviet Civil (1948) 354; Ginsburgs, by Foreigners Inheritance Law Under Soviet Law (1965) 16, 21.) 51 Iowa L.Rev.
(886 )