Sollars v. State

• Court: Nevada Supreme Court
• Writing for the Court: MERRILL; BADT, C. J., and EATHER
• Citation: Sollars v. State, 73 Nev. 248, 316 P.2d 917 (Nev. 1957)
• Decision Date: 18 October 1957
• Docket Number: No. 3953,3953
• Parties: Dale Eugene SOLLARS, Appellant, v. The STATE of Nevada, Respondent.

Page 917

316 P.2d 917

73 Nev. 248

Dale Eugene SOLLARS, Appellant, v. The STATE of Nevada, Respondent.

No. 3953.

Supreme Court of Nevada.

Oct. 18, 1957.

Rehearing Denied Dec. 19, 1957.

See 319 P.2d 139.

John W. Bonner, Law Vegas, for appellant.

Harvey Dickerson, Atty. Gen., George M. Dickerson, Dist. Atty., Las Vegas, for respondent.

MERRILL, Justice.

This is an appeal from judgment of conviction of murder in the first degree under which, pursuant to jury verdict, the appellant has been sentenced to life imprisonment. The defense interposed was that of insanity. The appeal comes to us upon four assignments of error. The first relates to our definition of insanity as a defense in a criminal action.

This court in 1889 in the case of State v. Lewis, 20 Nev. 333, 350, 22 P. 241, 247, approved and adopted the 'right-and-wrong' test patterned after the M'Naghten rules pronounced by English judges in 1843. 'To establish a defense on the ground of insanity, it must be clearly proved that at the time of committing the act the defendant was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong.'

Appellant attacks this test as unjust, unrealistic, scientifically false, and out-moded. In the court below he objected to jury instructions incorporating this test and to instructions, also approved in State v. Lewis, supra, and patterned after the M'Naghten rules, defining insane delusions and establishing the conditions under which they may constitute a defense. In place of these instructions he proposed what has come to be called 'the irresistible impulse' test as an alternative to the right-and-wrong test. The following instruction was offered: 'You are instructed that in cases of delusional insanity, there is no legal responsibility either where there is no capacity to distinguish between right and wrong, as applied to the particular act, or where, even though there is such a capacity, if by duress of mental disease, he has so far lost power to choose between right and wrong as not to avoid doing the act in question, so that his free agency at the time was destroyed, and at the same time the alleged crime was so connected with the delusion in the relation of cause and effect as to have been solely the product of them.' This instruction was refused by the trial court as an erroneous statement of the law. Appellant assigns as error the giving of instructions following the M'Naghten rules and State v. Lewis and the refusal to give his proposed instruction on irresistible impulse.

The M'Naghten right-and-wrong test has been criticized from the time of its announcement. In 1869 the New Hampshire Supreme Court in State v. Pike, 49 N.H. 399, 6 Am.Rep. 533, rejected the test and provided instead that an accused is not to be held criminally responsible if his unlawful act was the result of memtal disease or mental defect. Under this decision insanity was not defined as a matter of law, but in effect was made a question of fact to be determined by the jury as any other fact would be determined.

Notwithstanding criticism, the M'Naghten rules have received widespread approval in the courts of England and the United States. Not until 1954 did the New Hampshire rule receive recognition from the courts of other jurisdictions. In that year the United States Court of Appeals for the District of Columbia in Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430, adopted the New Hampshire rule in substance. The Durham decision has been applauded by the psychiatric profession and has received approval in many articles, notes and comments in the law journals. The courts remain slow to follow and more reluctant to approve.

These developments, however, have led us to the conclusion that the right-and-wrong test approved in State v. Lewis should be reexamined. Counsel in this case and in Fox v. State, Nev., 316 P.2d 924, were advised to this effect and have, through carefully prepared briefs, greatly assisted this court in its study of the problem. As a result of our study we have in this case rejected the irresistible impulse test. In Fox v. State we have considered and rejected the so-called theory of diminished or partial responsibility. The right-and-wrong test has been retained.

Criticism of the M'Naghten test is directed not only to the definition set forth but to a great extent is directed to the fact that the definition is set forth by rule: a rule by which juries must be bound and to which the testimony of experts must be directed. Judge Sobeloff, writing in 41 Am. Bar Assn. Journ. 793, 794, states: 'We know today that the external manifestations of mental disease follow no neat pattern permitting pat legal definitions suitable for universal application. * * * There is nothing more futile than the search for an absolute test as a matter of law; for it is a scientific fact, which has passed into common knowledge, that no such single test exists. * * * The weight to be assigned to a single phenomenon is not to be determined by a rule of law but in a factual judgment.' He quotes from Professor Whitehorn of the Johns Hopkins Medical School to this effect (p. 795): 'Psychiatrists are challenged to set forth a crystal-clear statement of what constitutes insanity. It is impossible to express this adequately in words alone, since such diagnostic judgments involve clinical skill and experience which cannot wholly be verbalized.'

But verbalization is necessary, even if difficult, if enlightenment is to be communicated to a jury. Likewise a definition is necessary. 'Insanity' and 'sound mind' are terms used by statute. N.R.S. 193.210 and 194.010. This court, then, must continue to recognize the statutory concept of 'insanity' as the basis for relief from criminal responsibility. The term must be given meaning and significance if a jury is to be able to find such a condition to exist.

In criminal law 'insanity', by whatever test it may be ascertained, may be said to be that degree or quantity of mental disorder which relieves one of the criminal responsibility for his actions. The existence of mental disorder may well be a fact. The weight to be assigned to any single phenomenon may well be a factual problem. It is quite another thing, however, to qualify as factual the determination that a certain state of disorder ought to relieve one from responsibility. This is moral, not factual, judgment. This is a determination which, to insure universal application in accordance with the principles of government under law, has been given expression in rules of law. The supporters of the Durham test contend that this judgment properly should be left to the jury in each individual criminal trial, uncontrolled by any rule of law.

It is universally recognized, however, that not every mental disorder should be regarded as sufficient to relieve one from criminal responsibility. So long as this be true it must be recognized that there are limits which may, in the public interest, be validly imposed upon the area within which the judgment of the jury and the psychiatrists can operate. In the interest of uniform administration of criminal justice it may reasonably be contended that these limits should be fixed as best they can and thus be made applicable in all cases.

To leave 'insanity' undefined would be to eliminate the entire statutory concept of insanity as the limited and uniform basis for relief from criminal accountability. It would substitute in its place a jury power of moral judgment unlimited by those very bounds which statute law contemplates and based solely upon the conscience and common sense of 12 persons. Such a sweeping change of approach, in disregard of limits and conditions contemplated by statute, is, we feel, beyond the reach of the judicial function as that function is recognized in this state.

In our view, therefore, the problem with which psychiatry and the law both are struggling should be judicially attacked, not upon the basis of an abandonment of rule of law through abandonment of definition, but upon the basis of agreement upon a test under which both law and psychiatry can best operate.

We turn to the question whether the right-and-wrong test should be modified by incorporating with it as an alternative the so-called 'irresistible impulse' test. Upon this question we have concluded that we must reject the proposed extension of the right-and-wrong test for the reason that it cannot be said to reflect the current enlightened public conviction.

Among the psychiatrists themselves there is much doubt as to the validity of the concept of irresistible impulse in the sense of a loss of volitional control through mental disorder which does not necessarily affect the intellectual powers of the defendant. In other words, the psychiatrists as a group apparently are not agreed that the urge to commit an act which one knows to be wrong can, through mental disorder, become irresistible. In the view of one substantial faction the intellect and the will cannot thus be disassociated. Journ. of Cr.Law, Criminology and Police Science, Vol. 46, Nov.-Dec. 1955, p. 463, 'Responsibility.' Dr. Cavanagh states in 'A Psychiatrist Looks At The Durham Decision,' 5 Catholic Univ. of Am.Law Rev. 25, 46, 'The will is indirectly influenced by the emotions and unconscious factors, but never coerced.'

The definition of insanity advocated by the appellant is taken from language found in Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am.Rep. 193, decided in 1887. In upholding the validity of the irresistible impulse test that court states, 2 So. at page 859, 'there must be two constituent elements of legal responsibility in the commission of every crime * * * (1) capacity of intellectual discrimination; and (2) freedom of will.' A distinction between cognition and volition...