Fox v. State

• Decision Date: 18 October 1957
• Docket Number: No. 3836,3836
• Citation: 316 P.2d 924,73 Nev. 241
• Parties: Robert F. FOX, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 924

316 P.2d 924

73 Nev. 241

Robert F. FOX, Appellant, v. The STATE of Nevada, Respondent.

No. 3836.

Supreme Court of Nevada.

Oct. 18, 1957.

Rehearing Denied Dec. 19, 1957.

Bert Goldwater, Reno, for appellant.

A. Dyer Jensen, Dist. Atty., Emile J. Gezelin, Asst. Dist. Atty., Reno, Harvey Dickerson, Atty. Gen., for respondent.

MERRILL, Justice.

This is an appeal from judgment of conviction of the crime of first degree murder for which, pursuant to jury verdict, the appellant has been sentenced to suffer the death penalty. The defense, in substance, was that of temporary insanity.

The sole assignment of error is failure of the trial court to give the following instruction: 'It is a well settled rule of law that insanity is no excuse for the commission of a crime unless there exists such defect of reason that the person charged did not know the nature and quality of his act, or, if he did know it, that he did not know he was doing what was wrong. In other words, a person may be insane and still responsible for his acts. However, evidence of insanity, which does not relieve the defendant of his guilt, may still be considered by the jury for the purpose of determining the degree of the crime. In other words, the evidence of insanity may be considered by you on the issues of malice, premeditation, deliberation and intent, and may reduce the grade of the offense charged.'

This instruction incorporates the so-called doctrine of diminished or partial responsibility which has been expressly rejected in this State. State v. Skaug, 63 Nev. 59, 161 P.2d 708, 163 P.2d 130; State v. Fisko, 58 Nev. 65, 70 P.2d 1113. In the latter case, 58 Nev. 65, 78, 70 P.2d 1113, 1118, it was stated, 'If by reason of insanity appellant did not know the nature and quality of his act, and that it was wrong, he was absolved from all guilt; otherwise in whatever lesser degree his mind may have been affected by drink or other cause, he is amenable to punishment as one of normal mind.' This portion was quoted in State v. Skaug, supra, 63 Nev. 68, 161 P.2d 712.

Notwithstanding these decisions we have, in conjunction with our opinion in State v. Sollars, 316 P.2d 917, determined to reexamine the law of this State respecting criminal responsibility and the definition of insanity as a criminal defense. Counsel in both cases were advised of our decision and, through the filing of extensive briefs, have greatly aided this court in its study of the problem. In the Sollars case we have reexamined and have retained the right-and-wrong test as applied since State v. Lewis, 20 Nev. 333, 22 P. 241, and have considered and rejected the so-called 'irresistible impulse' test. In the instant case we adhere to our rule rejecting the doctrine of partial responsibility.

Support for the partial responsibility doctrine comes through analogy with the rule applicable in cases of intoxication to the effect that evidence of intoxication may be considered for the purpose of determining whether it was such as 'so cloud[s] the mind * * * as to interfere with the formation of deliberate and premeditated purpose to kill.' State v. Jukich, 49 Nev. 217, 238, 242 P. 590, 598. State v. Johnny, 29 Nev. 203, 223, 87 P. 3. It is contended that if cloudiness of mind is a proper consideration in cases of voluntary drunkenness it must certainly be proper in cases of mental illness.

In our view the analogy to intoxication cases is not valid. In State v. Johnny, supra, this court approved an instruction which emphasized the degree of 'cloudiness of mind' which is necessary if the capacity to premeditate is to be held affected. The instruction stated, 29 Nev. 203, 222, 87 P. 3, 9, 'You should discriminate between the conditions of mind merely excited by intoxicating drink and yet capable of forming a specific and deliberate intent to take life, and such a prostration of the faculties as renders a man incapable of forming the intent, or of deliberation or premeditation.'

A mind so prostrated by disease as to be unable to formulate an intent or to deliberate or premeditate is a mind unable to know the nature and quality of a criminal act or that the act was wrong. It is an insane mind under our definition of insanity. In such a case the defendant is entitled not to a reduction in the degree of crime (as in the intoxication cases) but to outright acquittal. By the same token, a mind capable of knowing right from wrong must be regarded as capable of entertaining intent and of deliberating and premeditating. We may note that acquittal by reason of insanity in Nevada results in commitment to the State Hospital. N.R.S. 175.445. If it be held that mental illness not sufficient to constitute insanity may destroy one's capacity to premeditate, it may as reasonably be held to destroy one's capacity to entertain intent. This could well result in verdicts of outright acquittal. The public protection provided by commitment would be lost, although the acquittal was predicated upon lack of capacity, that is upon mental illness against which the public should have protection.

The rule of partial responsibility, by a confusion of terms all having to do with mental or intellectual capacity, would seem simply to extend the area within which the conscience of a jury may act upon what it regards to be mitigating circumstances. By statute mitigation is available to the jury only within the area of first degree murder where assessment of punishment by the jury is proper. Reduction in degree of the crime is not available to the jury upon the basis of mitigating circumstances but only upon the basis of lack of proof of the elements of the crime as fixed by law. State v. Skaug, supra.

We conclude that the rejection of the doctrine of partial responsibility was...