Sauer v. United States, 15159.

• Decision Date: 06 February 1957
• Docket Number: No. 15159.,15159.
• Parties: Richard Erwin SAUER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

241 F.2d 640 (1957)

Richard Erwin SAUER, Appellant, v. UNITED STATES of America, Appellee.

No. 15159.

United States Court of Appeals Ninth Circuit.

February 6, 1957.

Alfred H. Song, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Louis Lee Abbott, Asst. U. S. Atty., Chief, Criminal Div., Robert John Jensen, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BONE and BARNES, Circuit Judges, and ROSS, District Judge.

BARNES, Circuit Judge.

Appellant was convicted by jury verdict under an indictment charging a violation of 18 U.S.C.A. § 2113(a), to wit, entering a national bank with intent to commit larceny therein. He was sentenced to a term of five years with recommendation that facilities be made available to him for treatment of his mental condition and epileptic affliction.

I. The Facts.

The alleged offense occurred on November 21, 1955, in Los Angeles, California, at approximately 2:45 P.M. At that time appellant entered the Hill Street branch of the Citizens National Trust & Savings Bank of Los Angeles, a member bank of the Federal Reserve System. He was dressed in dark trousers, a peaked cap, overcoat, sportcoat, and two shirts, one worn underneath the other. Appellant had in his possession a shopping bag, a plastic "Dragnet type" toy revolver, and a holdup note, demanding money and admonishing the recipient to remain silent.¹ The evidence is somewhat in conflict as to precisely what happened thereafter. For purposes of this appeal it is not material. Apparently, appellant spoke with the bank guard who directed him to Mr. Swenson's desk where he informed the bank official in essence that he had come into the bank with the intention of holding it up and that the Federal Bureau of Investigation should be contacted. Appellant added that the F.B.I. had been the only ones who treated him decently and he hoped that he would receive similar consideration in the future. At no time prior to his conversation with Mr. Swenson did appellant display the toy revolver or the note or make any overt attempt to actually rob the bank. All of these events are recorded in a subsequent confession given the F.B.I. (Government Exhibit 5, Tr. 48-49.)

The sole ground of appeal relates to the adequacy of the instructions regarding insanity. Appellant contends that the trial court erred in not instructing the jury in accordance with the instructions suggested, and set forth in part at least, in the now historic Durham decision.² Instead the trial court reluctantly instructed the jury in terms of the traditional right and wrong test as supplemented by the so-called irresistible impulse rule.³

II. The Present State of the Law.

A. The Definition of Insanity in This Circuit.

The decision of this court in a very recent case, Andersen v. United States, 237 F.2d 118, decided September 21, 1956, is determinative of this question unless we choose to overrule that decision. In that case the instruction given was substantially identical with that in the instant case. There, as here, appellant urged this court to adopt the Durham rule. The holding of this court in the Andersen case was an express rejection of the Durham rule and a reaffirmation of the well-established formula contained in M'Naghten's Case, 10 Cl. & F. 200, 210; 8 Eng. Rep. 718 (1843), as extended by the "irresistible impulse" theory. We choose to adhere to this court's previous position, and regard the Andersen case as controlling.⁴

B. The Definition of Insanity in the Supreme Court.

Furthermore, even in the absence of the Andersen case, it is very doubtful that the question is an open one. Whether it is or is not an issue amenable to decision by a Court of Appeals depends on an interpretation of the two Supreme Court opinions in Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499, and 165 U.S. 373, 375, 17 S.Ct. 360, 41 L.Ed. 750. In the first Davis case the Supreme Court reversed a conviction of murder on the ground of error in the instruction on the burden of proof in respect to the matter of insanity.⁵ Although not necessary to the decision, the Supreme Court discussed the nature of the substantive legal test of insanity, referring to M'Naghten's Case, and noting that one cannot be held criminally responsible "unless at the time he had sufficient mind to comprehend the criminality or the right and wrong of such act,"^6a and that "the crime of murder involves sufficient capacity to distinguish between right and wrong."^6b Upon remand of the case, Davis was again convicted, and on appeal the Supreme Court affirmed. The instruction on insanity given in the second trial was identical to that given in the first trial and is exactly a portion of the instruction given by the court below in the instant matter. (Tr. 215.) It provides:

"The term `insanity\' as used in this defense means such a perverted and deranged condition of the mental and moral faculties as to render a person incapable of distinguishing between right and wrong, or unconscious at the time of the nature of the act he is committing, or where, though conscious of it and able to distinguish between right and wrong and know that the act is wrong, yet his will, by which I mean the governing power of his mind, has been otherwise than voluntarily so completely destroyed that his actions are not subject to it, and are beyond his control."

The Supreme Court held that this charge "under the circumstances of this case, was in no degree prejudicial to the rights of the defendant."⁷ The Supreme Court thus at least tacitly approved the test as being either incapacity (resulting from some mental disease or defect) to distinguish between right and wrong with respect to the act, or, although able to so distinguish, the inability to refrain from committing the act. There is nothing in subsequent Supreme Court opinions on this question which casts doubt on this construction of the Davis cases. Indeed, they serve only to fortify the view here expressed.⁸

C. The Definition of Insanity in Other Circuits.

In addition, the only other Circuit which has had an opportunity to consider this question since the Durham decision, the Fifth Circuit, shares our belief that we are not free to revise the law of criminal responsibility even if we were disposed to do so. Howard v. United States, 5 Cir., 232 F.2d 274, 275.

In light of the ever increasing outcry for modification of the conventional rules of criminal responsibility, perhaps it would be in order to observe the structure of the Federal judiciary system. The Court of Appeals is the intermediate court in the Federal judicial hierarchy; the Supreme Court the court of last resort. When the Supreme Court speaks, its voice is that of the ultimate judicial authority. We are bound to heed its pronouncements. At times its voice has not been heard, either because the question presented below is novel, or because the Supreme Court, in its wisdom, did not choose to decide the matter previously. Occasionally, the sound is merely suggestive; not compelling, but advising; and then there are the instances in which the Court speaks loudly and clearly. In these situations we must follow its command. This is such a case.

The question arises, how then, if the Supreme Court meant in the Davis and subsequent cases what the Fifth and this Circuit believe it meant, could Durham have been born? One answer lies in the unique status held by the courts of the District of Columbia as compared with other Federal courts. The Courts of the District of Columbia are possessed of far greater autonomy in the decision-making process than are courts in other circuits. This point is forcefully and dramatically borne out by the Fisher case, supra. (Note 8.) On appeal from a conviction of murder for which a sentence of death was imposed, the defendant urged the Supreme Court to declare that "mental weakness, short of that necessary to constitute legal insanity", 328 U.S. at page 473, 66 S.Ct. at page 1323, be a relevant factor in determining whether an accused is guilty of murder in the first degree, (a crime in which premeditation and deliberation are essential elements) or murder in the second degree. The Supreme Court, conscious that a man's life was at stake, expressly declined to rule on the merits of the contention, stating:

"We express no opinion upon whether the theory for which petitioner contends should or should not be made the law of the District of Columbia. * * *

"Matters relating to law enforcement in the District are entrusted to the courts of the District. Our policy is not to interfere with the local rules of law which they fashion, save in exceptional situations where egregious error has been committed.

"Where the choice of the Court of Appeals of the District of Columbia in local matters between conflicting legal conclusions seems nicely balanced, we do not interfere citations omitted. The policy of deferring to the District\'s courts on local law matters is reinforced here by the fact that the local law now challenged is long established and deeply rooted in the District." 328 U.S. at pages 476-477, 66 S.Ct. at page 1325.

The Court of Appeals for the District of Columbia was thus at liberty to promulgate a different rule of criminal responsibility than that approved by the Supreme Court in prior decisions. We do not have such authority.

III. The Problem Before This Court.

Believing as we do that the lone issue in the instant matter is controlled by the decisions of both the Supreme Court and this court and that the question cannot be regarded as an open one, we would ordinarily be inclined to conclude our discussion at this point and affirm the judgment. However, the question at bar, far from being ordinary, is perhaps the most controversial problem existing in the criminal law today.⁹ It is a question which has generated much debate and is deserving of much light. Moreover, because we are required to follow the rule of M'Naghten's Case does...