State v. Barton

Decision Date12 February 1951
Docket NumberNo. 41731,41731
Citation236 S.W.2d 596,361 Mo. 780
PartiesSTATE v. BARTON.
CourtMissouri Supreme Court

Green & Green, West Plains, for appellant.

J. E. Taylor, Atty. Gen., Robert L. Hyder, Asst. Atty. Gen., for respondent.

LOZIER, Commissioner.

Appellant, hereinafter called defendant, was convicted of grand larceny and sentenced to two years imprisonment. He filed here a transcript of the record, including the bill of exceptions containing all the evidence, but no brief, and the appeal was submitted upon the attorney general's brief. In his motion for new trial defendant challenged the propriety of the insanity instruction given by the court on its own motion and complained of the refusal of the insanity instruction requested by him. The main issue is the quantum of proof required of the defendant whose defense was insanity.

Defendant's refused insanity instruction, Instruction A, referred to 'a mental disease commonly known as 'blackout' or 'amnesia." Defendant claimed the court erred in refusing this instruction because the word "blackout', a common phrase used in describing the type of insanity alleged by defendant, was not covered in any other instruction.' Except for the use of these two terms, the mental condition involved was defined substantially in Instruction No. 2 as in Instruction A. As the former properly covered this phase of the insanity defense, the refusal of the latter was proper. State v. Biswell, 352 Mo. 698, 179 S.W.2d 61; and State v. Harris, Mo.Sup., 177 S.W. 362.

Defendant had the burden of sustaining his insanity defense. State v. Murphy, 338 Mo. 291, 90 S.W.2d 103. See also State v. Hardy, 359 Mo. 1169, 225 S.W.2d 693. However, defendant claimed that Instruction No. 2, the insanity instruction given by the court, improperly 'placed upon him the burden of proving his innocence in spite of the presumption of innocence.' There is no merit in this contention. The presumption was properly covered in both Instructions Nos. 2 and 3. Instruction No. 2 and other instructions clearly placed the burden of proof of defendant's guilt on the state. As to the extent of the state's burden: Instruction No. 2 required 'to a moral certainty and beyond a reasonable doubt,' Instruction No. 1, 'beyond a reasonable doubt' and Instruction No. 3, 'to sonable doubt' and Instruction No. 2, 'to doubt.' See State v. Graves, 352 Mo. 1102, 182 S.W.2d 46. The instructions must be read together. State v. Sapp, 356 Mo. 705, 203 S.W.2d 425.

Defendant next contended that Instruction No. 2 placed upon him an undue burden by requiring him to show his insanity to the 'satisfaction' or 'reasonable satisfaction' of the jury; and that these terms required a degree of proof beyond the preponderance or greater weight of the evidence. This instruction was:

'The court instructs the jury that if you find and believe from the evidence that the defendant at the time of the commission of the act charged in the information, if you should find and believe beyond a reasonable doubt from the evidence herein that he did commit such act, was so perverted, deranged, defective, or deficient, in one or more of his mental and moral faculties as to cause him to be incapable at the time of understanding that such act was wrong and in violation of the law of God and of society, you should acquit him upon the ground of insanity, but to hold the defendant criminally responsible it is only necessary that you should be satisfied from all the evidence that he had sufficient mental capacity to distinguish between right and wrong as to the particular act charged against him, and if you believe that the defendant, at the time of the commission of the act charged against him, if you find and believe he did commit such act, had such a degree of mental capacity as to enable him to distinguish between right and wrong in reference to said act and to know that said act was criminal and wrong and would deserve punishment, then in law he had a criminal intent and was not so insane, mentally defective, or deficient as to be exempt from the responsibilities of such act.

'The law does not excuse unless the mental derangement or impairment is so great that it actually renders the person incapable at the time of its commission of distinguishing between right and wrong as to the particular act proved against such person. To establish the insanity of the defendant, positive and direct proof of it is not required. To entitle him to an acquittal by reason of his insanity, circumstantial evidence which reasonably satisfies your mind of its existence is sufficient.

'As the law presumes the defendant innocent, the burden of proving him guilty rests with the state, and before you should convict him, his guilt must be established to a moral certainty and beyond a reasonable doubt. On the other hand, to entitle the defendant to a verdict of not guilty, solely by reason of his insanity, the law requires him to prove it, not, however, beyond a reasonable doubt, but only to your reasonable satisfaction. * * *' (Italics ours.)

The instruction thus once required 'satisfaction' and twice 'reasonable satisfaction,' but did not require either such satisfaction to be 'by the preponderance, or by the greater weight of the evidence.' It was our first impression that defendant's objection was without merit. We have heretofore stated (or approved instructions stating) defendant's burden as expressed in this instruction. See, for example, the following: State v. Privitt, 175 Mo. 207, 75 S.W. 457, and State v. Murrell, Mo.Sup., 169 S.W.2d 409 ('satisfactorily shown'); State v. Church, 199 Mo. 605, 98 S.W. 16 ('reasonable satisfaction'); and State v. Palmer, 161 Mo. 152, 61 S.W. 651 ('reasonably satisfies your minds'). In State v. Barbata, 336 Mo. 362, 80 S.W.2d 865, 870, and State v. Duestrow, 137 Mo. 44, 38 S.W. 554, 39 S.W. 266, we approved insanity instructions in which, as in the instant case, defendant's burden was 'not * * * beyond a reasonable doubt, bot only to your reasonable satisfaction.' So, the trial judge's action in giving Instruction No. 2 was supported by ample authority.

On the other hand, this court has also approved instructions making defendant's measure of proof satisfaction, or reasonable satisfaction, 'by a preponderance or greater weight of the evidence'. State v. Scott, 359 Mo. 631, 223 S.W.2d 453, 456; State v. Sapp, supra; State v. Douglas, 312 Mo. 373, 278 S.W. 1016; State v. Porter, 213 Mo. 43, 111 S.W. 529; State v. Barker, 216 Mo. 532, 115 S.W. 1102; and State v. Murphy, 338 Mo. 291, 90 S.W.2d 103, 109, and cases cited therein. See also State v. Davis, 342 Mo. 594, 116 S.W.2d 110. In State v. Coats, 174 Mo. 396, 74 S.W. 864, 870, though one instruction required the defendant to prove his insanity defense to the jury's 'reasonable satisfaction,' another required proof of that issue to its reasonable satisfaction, by the weight or preponderance of the evidence.

In State v. Murphy, supra, we referred to Sec. 4049, Mo.R.S.1939, and Mo.R.S.A. This is the statute requiring a jury acquitting a defendant solely because of insanity to further find if he is still insane (and if so that he be further dealt with according to law). 'Obviously this statute is incompatable with the theory that the jury may acquit when they entertain only a reasonable doubt as to the sanity of the accused. * * * We conclude, therefore, that the burden was on the appellant to prove his insanity by a preponderance of the evidence as, or at least like, an affirmative defense.'

Determination of the present 'satisfaction' issue was not involved in any of these cases. We are now required to determine whether the principles announced in these two series of decisions are substantially the same and, if not, which of the two parallel lines of authority should prevail. Does the omission of 'by the preponderance or greater weight of the evidence' increase the defendant's burden of proof of his insanity defense? Are these words a qualification, or limitation upon the extent, of the degree of 'satisfaction' or 'reasonable satisfaction'?

We have concluded that the jury's 'satisfaction' or 'reasonable satisfaction' alone is not the proper measure of defendant's burden. The decisions in other jurisdictions as to quantum of proof of insanity in criminal cases are not uniform. See Wharton's Crim. Evid., 11th Ed., Vol 2, Secs. 895 ff.; and Annotations, 39 L.R.A. 737, and 44 L.R.A., N.S., 119. In State v. Clark, 34 Wash. 485, 76 P. 98, 101 Am.St.Rep. 1066, the different standards were analyzed, and the preponderance of the evidence rule was adopted. And, generally, courts, have ruled that instructions placing upon the defendant a greater burden as to the defense of insanity than proof by a preponderance of the evidence are erroneous. 23 C.J.S., Criminal Law, Sec. 1224, p. 784. And see State v. Austin, 71 Ohio St. 317, 73 N.E. 218, 104 Am.St.Rep. 778.

Where the requirement of the jury's satisfaction or reasonable satisfaction is not involved (i.e. not coupled with the preponderance or greater weight requirement), and in the same or other instructions the state's burden of defendant's guilt is fixed as that of beyond a reasonable doubt, the quantum of a defendant's proof of his insanity is usually that of preponderance or greater weight. Wharton, Crim.Evid., 11th Ed., Vol. 2, Sec. 897, and State v. Hauser, 101 Ohio St. 404, 131 N.E. 66. See State v. Gatlin, 208 S.C. 414, 38 S.E.2d 238. But see State v. Calkins, 63 Idaho 314, 120 P.2d 253, disapproving an instruction requiring proof of insanity by a preponderance as exacting of the defendant more than the creation of a reasonable doubt.

'Generally, 'an instruction is erroneous if it requires that a defensive matter be proved to the satisfaction of the jury.' 53 Am.Jur., p. 569. But see State v. Swink, 229 N.C. 123, 47 S.E.2d 852, an insanity case, approving 'satisfaction' but disapproving 'clearly satisfied.' In State v....

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