Lautario v. State

• Decision Date: 19 October 1921
• Docket Number: Criminal 509
• Citation: 23 Ariz. 15,201 P. 91
• Parties: RICARDO LAUTERIO, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

201 P. 91

23 Ariz. 15

RICARDO LAUTERIO, Appellant, v. STATE, Respondent

Criminal No. 509

Supreme Court of Arizona

October 19, 1921

APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge. Affirmed.

Mr. W J. Fellows, for Appellant.

Mr. W J. Galbraith, Attorney General, Mr. R. E. L. Shepherd, County Attorney, for the State.

OPINION

ROSS, C. J.

The appellant appeals from the verdict and judgment of conviction of murder in the first degree entered against him on the eighth day of February, 1921, in the superior court of Maricopa county. The jury in its verdict fixed the punishment at death, and the court thereupon sentenced the appellant to be hanged on the twenty-first day of April, 1921, at the state penitentiary. The errors assigned by appellant are four in number, as follows:

"I. That the verdict and judgment are contrary to the law and evidence in this: That at the time of the commission of the crime the evidence shows that defendant was not rational, but was beyond doubt insane and unable to comprehend the wrongfulness of his act, and incapable of forming a criminal intent.

"II. That counsel for the prosecution were guilty of misconduct during the course of the trial and during the argument neither of which, when once placed before the jury, could have been cured by rebuke or admonition from the court.

"III. The court erred in refusing an instruction on insanity offered by the defendant.

"IV. That the sentence is excessive and is too severe in this case."

We have carefully examined the transcript of the testimony, and especially that part of it appellant cites and relies upon to sustain the proposition contained in his first assignment, to wit, "that defendant was not rational, but was beyond doubt insane," etc. There is not an iota of evidence to sustain this assignment. All the testimony appellant claims sustains the proposition pertains to his acts and conduct and condition after he had taken the life of the deceased and not before. When appellant was apprehended, a short distance from the place where he inflicted the mortal wound that killed deceased, he showed symptoms of poisoning, and stated that he had taken strychnine. Witnesses testified that he was having paroxysms of vomiting, and was spasmodic when found and for a time thereafter; and it is these things or acts appellant claims as evidence of insanity, together with the fact that he attempted to commit suicide. It was upon such evidence that appellant asked the court to instruct the jury on the question of insanity, the refusal of which he makes his third assignment.

The instruction so requested is in the following language:

"You are instructed that all the evidence tending to prove insanity of the defendant is to be weighed by you in your deliberations, and that the fact that the defendant attempted to commit suicide must be weighed along with other facts tending to prove insanity of the defendant at the time of the commission of the crime, and after due deliberation, if you entertain a reasonable doubt as to the sound mind of the defendant at the time of the commission of the crime, you will return a verdict of not guilty."

It is elementary that instructions must be based upon the evidence. Requests assuming a state of facts that do not exist in the record should never be given. We do not understand that the mere attempt to commit suicide by appellant would be evidence justifying the court to submit the issue of his sanity to a jury. Hopkins v. State, 4 Okl.Cr. 194, 108 P. 420, 111 P. 947. We think it would have been error for the court to have given the requested instruction, in the absence of some evidence on that issue. Mitchell v. State, 52 Tex. Cr. 37, 106 S.W. 124; State v. Gruber, 19 Idaho 692, 115 P. 1; Hulsey v. State, 111 Ark. 510, 164 S.W. 273; State v. Buonomo, 87 Conn. 285, 87 A. 977.

The instruction was properly refused for another reason. It fails to correctly state the law. It is not enough that the jury "entertain a reasonable doubt as to the sound mind of the defendant at the time of the commission of the crime." They must entertain a reasonable doubt of his ability to distinguish between right and wrong as applied to the act involved.

"The authorities are unanimous in declaring that weakness of, or deficiency in, any one of the mental functions, is not of itself sufficient to excuse the perpetrator of a criminal act. The ancient and generally accepted test for determining the punishability of one taking life is the capacity to distinguish right from wrong." 13 R.C.L. 710, § 10.

The...