Dean v. State, 5804

• Decision Date: 22 August 1983
• Docket Number: No. 5804,5804
• Citation: 668 P.2d 639
• Parties: Terry Van DEAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 639

668 P.2d 639

Terry Van DEAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5804.

Supreme Court of Wyoming.

Aug. 22, 1983.

Sylvia Lee Hackl, Appellate Counsel, Wyoming Public Defender Program, Cheyenne, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Allen C. Johnson, Sr. Asst. Atty. Gen., and Sharon A. Lyman, Asst. Atty. Gen., Cheyenne, for appellee.

Before ROONEY, C.J., and RAPER, ^* THOMAS, ROSE and BROWN, JJ.

ROONEY, Chief Justice.

This appeal is from a judgment and verdict after a jury trial in which appellant was found guilty of first-degree arson in violation of § 6-7-101, W.S.1977. ¹ Appellant had entered pleas of not guilty, not guilty by reason of mental illness or deficiency, ² and not triable by reason of mental illness or deficiency. ³ Appellant was sentenced to not less than two nor more than eight years in the penitentiary with the additional requirement that the last six months of incarceration be at the Wyoming State Hospital in Evanston.

Appellant words the issues on appeal as follows:

"Whether the trial court erred in refusing Appellant's instructions regarding mental illness or deficiency, and in giving Instruction No. 6, which failed to adequately define the applicable principles regarding mental illness or deficiency.

"Whether the trial court erred in refusing to consider probation as a sentencing alternative, which failure constitutes plain error."

We affirm, but modify the sentence to delete the requirement that some of the sentence be served at the Wyoming State Hospital.

INSTRUCTIONS

Appellant objected to the refusal of the trial court to give his requested Instructions B, C and E, and he objected to the giving of Instruction 6.

Proposed Instruction B reads:

"A finding that defendant was mentally responsible for his acts is not equivalent to a finding that he acted with specific intent, that is, willfullness [sic] and malice, necessary for the offense alleged. Even if you find from the evidence in the case beyond a reasonable doubt that the defendant was mentally responsible for his acts at the time of the alleged offense, it is still your duty to consider all the evidence in the case which may aid in determining whether he acted with necessary specific intent."

Proposed Instruction C reads:

"If you find that the defendant's mental capacity was diminished to an extent that would make him incapable of forming the willfullness [sic] and malice that is an element of the crime of first degree arson, then you must find the defendant not guilty."

Proposed Instruction E reads:

"A person is not legally responsible for his criminal conduct if:

"1. He was suffering at the time of the criminal conduct from a mental illness or deficiency; and

"2. As a result, he lacked substantial capacity, either to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of the law.

"The term 'mental illness' means mental disease or defect that would render the defendant incapable of understanding the nature, quality, consequences, and wrongfullness [sic] of his act, and includes the concept of 'irresistable-impulse [sic]' or 'uncontrollable act'.

"The term 'mental deficiency' means a defect attributable to mental retardation, brain damage or a learning disability.

"The phrase 'mental illness or deficiency' does not include an abnormality manifested only by repeated criminal conduct.

"The State must prove that the defendant was mentally responsible for the crime beyond a reasonable doubt.

"Thus, if you do not believe that the State has proven beyond a reasonable doubt that the defendant was mentally responsible, then you should find him not guilty by reason of mental illness or deficiency."

Instruction 6 reads:

"Under certain circumstances a person is not legally responsible for his criminal conduct. Among those circumstances, defendant is not legally responsible for criminal conduct if:

"1. He was suffering at the time of the criminal conduct from a mental illness or deficiency; and

"2. As a result, he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.

"The term 'mental deficiency' means a defect attributable to mental retardation, brain damage and a learning disability.

"The phrase 'mental illness or deficiency' does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

"The state must prove that the defendant was mentally responsible for the crime beyond a reasonable doubt.

"Thus, if you do not believe that the state has proven beyond a reasonable doubt that the defendant was mentally responsible, then you should find him not guilty by reason of mental illness or deficiency."

Proposed Instruction B is Wyoming Pattern Jury Instruction Criminal No. 4.103 except that appellant has added the words "that is willfullness [sic] and malice" as a definition of specific intent. And this is the misconception which invalidates appellant's entire position. He argues that "the defense theory of the case [is] that appellant was unable to form the specific intent which is a necessary element of the crime of first-degree arson."

First-degree arson was not a specific intent crime at the time of the offense and trial. ⁴ When an act is made a crime by the legislature, two kinds of "intent" may be involved. A "general intent" may be sufficient, i.e. an intent to commit the act or engage in specific conduct, guilty knowledge, mens rea. A specific intent may be made one of the required elements of the crime, i.e. with a designated purpose or intention to produce the desired result such as "intent to kill," 22 C.J.S. Criminal Law, §§ 30 and 32; 21 Am.Jur.2d Criminal Law, §§ 129 and 130.

" * * * 'When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence' the fact that the defendant intended to do the proscribed act makes that crime a general criminal intent offense. (Emphasis added.) 'When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.' * * * " (Emphasis in original.) People v. Love, 111 Cal.App.3d Supp. 1, 168 Cal.Rptr. 591, 600 (1980).

" * * * A specific intent crime is one in which a particular intent is a necessary element of the crime itself. * * * " Russell v. State, Fla.App., 373 So.2d 97, 98 (1979).

The word "intent" has long been accepted for use in these fashions, but it is not a very apt term to describe the mental element requisite for each crime, covering as it does not only the specific intent necessary in some crimes and the general intent to do wrong which is sufficient in other crimes, but also criminal negligence, which should not properly be called "intent" at all. Long time use, however, dictates the use of the word in these fashions.

Appellant may have misconstrued the words "willfully and maliciously" in the statute (see fn. 1) as a requirement of specific intent. Obviously, such is not so. These words describe the act to be committed and not an intention to produce a desired specific result. Any intent to be derived from them is a general intent.

" * * * [W]illfully means intentionally, knowingly, purposely, voluntarily, consciously, deliberately, and without justifiable excuse, as distinguished from carelessly, inadvertently, accidentally, negligently, heedlessly or thoughtlessly. [Citations.]" Matter of Adoption of CCT and CDT, Wyo., 640 P.2d 73, 76 (1982).

" * * * '[M]alicious' when used in defining the crime of arson is quite different from its literal meaning. * * * 'The malice * * * need not be express, but may be implied; it need not take the form of malevolence or ill will, but it is sufficient if one deliberately and without justification or excuse sets out to burn the dwelling house of another.' " Commonwealth v. Lamothe, 343 Mass. 417, 179 N.E.2d 245, 246 (1961).

"We find no error in the trial court's refusal to give this instruction. To be a wilful and malicious burning in the law of arson, the burning must simply be done voluntarily and without excuse or justification and without any bona fide claim of right. In re Appeal In Pima County Juvenile Action No. J-37390-1, 116 Ariz. 519, 570 P.2d 206 (App.1977). Arson is a crime of general, rather than specific intent and the requirement that the defendant act 'wilfully and maliciously' does not mean that the defendant must have an actual subjective purpose that the act he does intentionally shall produce either a (1) setting a fire or burning of the structure or (2) damage to or destruction of said structure. State v. O'Farrell, 355 A.2d 396 (Me.1976). As pointed out in State v. Bell, 113 Ariz. 279, 551 P.2d 548 (1976) reh. den. 113 Ariz. 326, 553 P.2d 1200 (1976), the word 'wilfully' does not add a specific intent element. 'Wilfully' means intentionally as distinguished from accidentally or involuntarily and 'maliciously' means that state of mind which actuates conduct injurious to others without lawful reason, cause or excuse. In re Appeal In Pima County Juvenile Action No. J-37390-1, supra; see also, A.R.S. § 1-215(36) and (15)." State v. Scott, 118 Ariz. 383, 576 P.2d 1383, 1385 (1978).

The trial court properly refused appellant's proposed Instruction B. It would have injected the element of specific intent into the crime charged--an element that is not properly there. The court did instruct the jury on the definitions of willfully and maliciously as follows:

"Willfully means conduct that is purposeful and intentional and not accidental."

" 'Maliciously' means the commission of a wrongful act done intentionally without legal justification or excuse. The term 'malice' conveys the meaning of hatred, ill will, or hostility and implies a wicked condition of the mind."

As previously...