Battalino v. People

• Decision Date: 01 November 1948
• Docket Number: 16049.
• Parties: BATTALINO v. PEOPLE.
• Court: Colorado Supreme Court

199 P.2d 897

118 Colo. 587

BATTALINO v. PEOPLE.

No. 16049.

Supreme Court of Colorado, en Banc.

November 1, 1948

Rehearing Denied Nov. 15, 1948.

Error to District Court, Jefferson County; Harold H. Davies, Judge.

Robert S. Battalino, alias Robert S. Miller, was convicted of murder in the first degree, and he brings error.

Judgment affirmed.

HILLIARD J., dissenting.

Carl Cline, of Denver, for plaintiff in error.

H Lawrence Hinkley, Atty. Gen., Duke W. Dunbar, Deputy Atty Gen., and James S. Henderson, Asst. Atty. Gen., for defendant in error.

STONE Justice.

Plaintiff in error, Robert S. Battalino, was convicted of murder of the first degree for the killing of Michael Hugh Randolph.

Randolph, at the time of his death, was engaged in the operation of a restaurant in Denver. Battalino and his wife both had been employed briefly at the restaurant, the latter as a waitress and the former as a fry cook. Some time Before the homicide that employment had terminated. Battalino testified both that they quit, and that they were 'fired.' Other employees testified that Battalino and Randolph engaged in frequent disputes, that the latter accused Battalino of taking money from the cash register and that Battalino threatened 'to get' Randolph or to 'rub him out.' Another employee of Randolph in the restaurant named Miller became intimate with Battalino and left his employment there at about the same time. The two men, according to the statement of each of them, went together to the restaurant in Miller's car late on the evening of the homicide, taking a gun which was being kept by Miller at the request of a friend, and waited until Randolph closed the restaurant for the night, when Battalino forced him at gunpoint to climb into the Miller car and ordered Miller to drive toward the mountains. After driving up the main highway some distance beyond Conifer Battalino ordered the car stopped, the other two men out, through the fence and down a slope some 125 feet from the main highway beside a large rock where he first gave Randolph an opportunity to pray and then shot him in the forehead. Battalino and Miller returned to the car and came back to Denver. The following morning Battalino left town and shortly thereafter was joined by Miller in Omaha. Randolph's body was discovered several weeks later, whereafter, Battalino and Miller were traced to Omaha and placed under arrest. Each made a written statement admitting his part in the kidnapping and killing. Miller in his testimony at the trial in all essentials corroborated Battalino's written confession and there was other substantial corroborating evidence. Upon arraignment defendant pleaded not guilty and not guilty by reason of insanity. He was given a separate trial whereat the jury returned a verdict of guilty of murder in the first degree and fixed the penalty at death.

The first assignment of error here urged is the refusal of the trial court to give the jury an instruction on murder of the second degree and a form of verdict permitting it to find defendant guilty of murder in that degree. This assignment is based on the ground that there was evidence of insanity of defendant introduced, and although the jury found that the defendant was not so diseased in mind as to be incapable of distinguishing right from wrong or of choosing the right and refraining from doing wrong, still if permitted, it might have found that he was incapable of that wilful deliberation and premeditation essential to murder in the first degree, and, therefore, he was guilty of murder of the second degree only.

In support of this assignment counsel relies particularly on Ingles v. People, 92 Colo. 518, 22 P.2d 1109. Our statute provides that if one of the defenses interposed by one charged with a criminal offense be insanity, said defense must be pleaded orally as a specification to the plea of not guilty. The question there posed was whether evidence of insanity offered, not for the purpose of defense, but for the purpose of mitigation only was within the restriction of the statute, and we held that where a defendant chooses not to interpose a plea of not guilty by reason of insanity, but to stand upon the general plea of not guilty, he may not claim irresponsibility by reason of insanity and demand an acquittal on that grounds, but that he is entitled to introduce evidence of insanity or mental derangement short of insanity, for the purpose, not of seeking an acquittal, but of reducing the grade of the crime from murder of the first degree to murder of the second degree.

In the present case, it could hardly be otherwise than that the jury found defendant guilty of murder of the first degree because the murder was committed in the perpetration of robbery. Defendant stated in his confession that after he shot Randolph, he 'took the dough out of his pocket'; that he kept the money, and that there wsa $450.00; and there was no evidence Before the jury to the contrary. But even assuming the jury found that defendant's motive was not robbery, but revenge for Randolph's having beaten him, as he said, out of some money in a bootlegging deal in 1937, still a different question is involved from that in the Ingles case. Here insanity was pleaded as a defense and the question is whether, when insanity is so pleaded, evidence of insanity should be considered by the jury both in defense and in mitigation; whether if the jury finds defendant not so insane as to be entitled to acquittal, it may still find him so insane as to be guilty only of murder of the second degree. The weight of authority is to the contrary. In California the rule has been stated as follows: 'The insanity of a defendant cannot be used for the purpose of reducing his crime from murder in the first degree to murder in the second degree. If responsible at all in this respect, he is responsible in the same degree as a same man, and if he is not responsible at all he is entitled to an acquittal in both degrees.' People v. Troche, 206 Cal. 35, 273 P. 767, 772.

Like rule has been stated and followed in: State v. Maioni, 78 N.J.L. 339, 74 A. 526, 20 Ann.Cas. 204; Sage v. State, 91 Ind. 141; United States v. Lee, 4 Mackey 489, 54 Am.Rep. 293; State v. Kotovsky, 11 Mo.App. 584; Commonwealth v. Hollinger, 190 Pa. 155, 42 A. 548; Hogue v. State, 65 Tex.Cr. 539, 146 S.W. 905; Foster v. State, 37 Ariz. 281, 294 P. 268; State v. Fisko, 58 Nev. 65, 70 P.2d 1113. And it is stated in 1 Michie on Homicide, page 199, § 61; Wharton on Homicide, 3d Ed. 803, § 539; Glueck, Mental Disorder and the Criminal Law, 200, 76 A.M.S.R. 84.

Yet several states have recognized limitations to this rule. In Andersen v. State, 43 Conn. 514, 21 Am.Rep. 669, where defendant, without substantial grievance, appeared at the shop in which he had formerly been employed, and with a revolver in each hand started shooting promiscuously, killing a man with whom he had had no trouble, and there was much evidence as to his irrational excitability and suffering from fancied injuries, the court said: 'It is not our purpose either to ignore or recognize this from of insanity as an excuse for crime. The question is not whether an act committed under its influence is criminal; whether the actor should be punished or be exempt from punishment; but whether he is a proper subject of capital punishment. If it be conceded that one afflicted with it never loses the power to distinguish between right and wrong, and is at all times master of himself and may control his actions, still his mind may be enfeebled and the power of his will weakened, so that he will readily yield to the influence of temptation or provocation without that wilful, deliberate and premeditated malice which is essential to constitute murder in the first degree.'

In Dejarnette v. Commonwealth, 75 Va. 867, 880, is recognition of the rule by way of dictum; 'At the same time, there are, doubtless, cases in which, whilst the prisoner may not be insane, in the sense which exempts from purnishment, yet he may be in that condition from partial aberration or enfeeblement of intellect which renders him incapable of the sedate, deliberate and specific intent necessary to constitute murder in the first degree. These are questions for the jury, and not for the court.'

In People v. Moran, 249 N.Y. 179, 163 N.E. 553, an epileptic youth, low and unstable mentally, classed as a psychological inferior, and with a record of insanity in both paternal and maternal lines, had been convicted of murder in the first degree. The court of appeals said: 'Feebleness of mind or will, even though not so extreme as to justify a finding that the defendant is irresponsible, may properly be considered by the triers of the facts in determining whether a homicide has been committed with a deliberate and premeditated design to kill, and may thus be effective to reduce the grade of the offense.' However, the conviction was affirmed.

More recently in State v. Green, 78 Utah 580, 6 P.2d 177 184, a twenty-one year old youth was convicted of murder of the first degree. He had low memtality, was afflicted with toxic goiter, and both his father and sister had been hospitalized as insane. Following a slight disagreement, his wife had gone to her mother's home. After having retired at night defendant arose, dressed, announced he would be back in a few minutes, procured a revolver, drove out to the home of his wife's mother, roused the family from sleep and killed his wife, her mother, and her stepfather. A member of the household testified that Before the shooting, defendant was white, his eyes were wild and he was nervous and trembling. The conviction was reversed on appeal for error in several respects, and the court said: 'Not all persons who are afflicted...