State v. Arthur

• Citation: 160 N.W.2d 470
• Decision Date: 18 July 1968
• Docket Number: No. 52556,52556
• Parties: STATE of Iowa, Appellee, v. James Anthony ARTHUR, Appellant.
• Court: United States State Supreme Court of Iowa

Page 470

160 N.W.2d 470

STATE of Iowa, Appellee, v. James Anthony ARTHUR, Appellant.

No. 52556.

Supreme Court of Iowa.

July 18, 1968.

Rehearing Denied Sept. 4, 1968.

James Lawyer, Des Moines, and John D. Cray, Burlington, for appellant.

Richard C. Turner, Atty. Gen., David A. Elderkin, Asst. Atty. Gen., and William L. Hildreth, County Atty., Burlington, for appellee.

SNELL, Justice.

Defendant James Anthony Arthur was indicted for murder (first degree) as defined by sections 690.1 and 690.2, Code of Iowa. He has at all times been represented by experienced and competent counsel. He entered a plea of not guilty. On application of his counsel and order of court he was temporarily transferred to Iowa Methodist Hospital, Psychiatric Department, for psychiatric examination. He thereafter entered an additional plea of not guilty by reason of insanity. He was tried before a judge and jury and found guilty of murder in the second degree. From final judgment entered after ruling on his subsequent motions he appealed. We affirm.

Except for the formal plea of not guilty and defendant's claimed lapse of memory there are no factual issues other than the question of insanity.

The trial court found that James Arthur murdered Helen Barker in June 1966. He had been dating and seeing her frequently since the summer of 1965. He had left his wife in January 1966.

Defendant was born March 25, 1928 and was 38 years of age at the time of trial. He was married in 1947 and his family cosisted of his wife and six children.

Helen Barker had been married and had two boys. On weekends her sons would visit their father and defendant would visit Helen Barker, arriving on Saturday and staying until early Sunday evening. During the time that he was dating Helen Barker the defendant suffered two seizures and blackouts, one in August 1965, the other in October 1965. The last seizure occurred while the defendant was driving a government vehicle at a munitions plant and his employment was terminated shortly thereafter. The seizures were recognized as a 'grand mal seizure', an epileptic seizure.

On the last weekend of Helen Barker's life, defendant was at her home. On Sunday morning, June 19, 1966, the defendant arose and watched television and then took her car to be washed. While he was washing the car he consumed a part of a pint of whiskey. He drove back to her home and finished cleaning the car. He drank some more bourbon and some beer.

In the afternoon Helen Barker was shot and killed. The muzzle of the weapon was held 12 to 18 inches from her face. It was estimated that she was killed around 1:30 to 2:00 on the afternoon of Sunday, June 19, 1966.

Defendant was seen leaving the house and driving away at about 2:00 p.m. As he left he drove slowly and was looking or staring toward the Barker residence.

Mrs. Barker's body was found by her minor son when he returned home from a trip downtown.

Defendant drove Mrs. Barker's car to Nauvoo, Illinois where he had car trouble. He called a woman named Elaine Rasmussen who went to Nauvoo and took him to her home in Danville. He was arrested at her home between 4:00 and 5:00 the next morning. There was a 22 caliber revolver in the Barker car under the right front seat. The gun was loaded with three live shots and three spent shots. A pawn shop owner said he sold the gun to defendant on June 11, 1966, 8 days before the murder. 22 caliber bullets were found on the defendant when he was arrested.

Defendant in his own behalf testified as to his background, work, health and habits. He said he remembered standing beside Helen Barker with a gun in his hand, but had no recollection of any other details surrounding her death or of his activities during the afternoon and evening of June 19. He had no quarrels with Helen Barker. He had asked his wife for a divorce, had considered getting a Mexican divorce, was in love with Helen Barker and wanted to marry her.

Other lay witnesses who had known defendant testified as to his physical condition. There is neither claim nor evidence that defendant suffered any grand mal seizure on June 19.

Two doctors who examined defendant were called as witnesses for defendant.

Dr. Summers, a specialist in neurology, testified as to his examination and tests including a pneumoencephalogram.

'These brain wave tests revealed disturbances in the electrical activity of a convulsive disorder which were compatable with a 'grand mal' seizure disorder. * * * The only physical activity that takes place during 'grand mal' seizure is that characterized by the convulsive movement. The person is usually unconscious and is not up and moving around. * * *

'It is possible for a person to have the brain atrophy found in this case and except for the times when they are in seizure, to be completely of sound judgment and be able to carry on every day life as a whole. The lobe that was affected by the atrophy is primarily concerned with the feeling and movement of the body parts and normally has nothing to do with the emotions of an individual.

'Mr. Arthur had no loss of memory while I was talking with him and he was orientated at the time. As a part of his medical history he did describe loss of memory.'

Dr. Turner, a certified a specialist in psychiatry, told of his examination and evidence of a convulsive disorder. There was moderate to substantial atrophy of the brain and evidence of emotional instability. In response to a long hypothetical question he said:

'I have the opinion that this patient could not distinguish right from wrong and as a result of that could not adhere to the right.'

On cross examination he said:

'A mental examination was conducted. It is to determine whether or not the patient is orientated, whether he suffers from delusions, hallucinations, whether he appears psychotic. I determined that he was not confused, that he was well orientated and did not appear to be suffering from hallucinations and delusions. He was co-operative, and his affect seemed to be normal. His sensorium, which is an examination to determine the contact of the patient with his environment, was intact and complete. His crying was appropriate to the conversation at the time, but his responses to the conversation, recovery from the conversation seemed to me to be unstable. It is true that character changes in and of themselves do not amount to insanity. They are indicative of a change in personality, the attitudes of the patient, the style of life. The tracings from the EEG were not specific to the type of convulsive disorder. I wouldn't express an opinion about the type of epilepsy. All that concerns me at this point medically speaking that the patient suffers from a convulsive disorder and that appears to be associated with an underlying illness.

'A person cannot perform physical activity which requires volition in the state of a grand mal seizure. The defendant had brain atrophy which was moderate to severe in nature, and this is consistent with the clinical findings. Just because a person is emotionally unstable, does not necessarily mean that he does not know the difference between right and wrong, or the nature and consequences of his acts. * * *

'No other tests were performed other than the mental status test, the sensorium, the medical history and the EEG. A standard psychological test to determine mental capacity was not used. It is possible that on June 19, 1966 the defendant knew the difference between right and wrong when he shot Helen Barker.'

Nowhere do we find in the testimony of any witness any suggestion that defendant was suffering from an irresistible impulse when he shot Mrs. Barker.

Dr. Eggert, a specialist in psychiatry with the Mental Health Institute at Mount Pleasant, testified in rebuttal for the state. He had heard part of the testimony and examined the x-rays. In response to a long hypothetical question he diagnosed defendant as a sociopathic personality with a convulsive disorder, grand mal epilepsy. As to the effect on defendant he said:

'I think it had no effect on his ability to reason and think. My opinion is that he did understand the nature and quality of the act and he understood the consequences of the act and the harmfulness of it. I have no opinion as to whether he was able to adhere to the right or to the wrong. My opinion is that he knew the difference between right and wrong. * * *

'A person with organic brain disease, such as Mr. Arthur, using dilantin coupled with alcohol could be in a state of non-memory.'

I. The only issue in the trial court as to defendant's insanity was that tendered by defendant, i.e. that he had epilepsy and some atrophy of the brain and as a result was unable to distinguish right from wrong. Based on this defense and the evidence offered the court instructed accordingly, using the well known M'Naghten knowledge of right from wrong test. There were no requests for instructions on any other theory. Prior to the jury's verdict there were no exceptions to the instructions.

In a criminal case exceptions to instructions based on error therein need not be taken before submission to the jury. However, if additional or more explicit instructions are desired they should be requested before they are given to the jury. In the case before us the instructions covered the only issue tendered and the only evidence offered. The trial court did not commit reversible error in failing to instruct on an issue not tendered and concerning which there was no evidence. See State v. Horrell, 260 Iowa ---, 151 N.W.2d 526, 532 and cases cited therein.

Even though there was no error as now alleged we would not let a finding of guilt stand if on the whole record we determine that a fair trial was not had.

II. A plea of insanity does not relieve the state from proving every fact essential to establish the crime and defendant's guilt. The law presumes all men sane until the contrary is established by competent evidence to the...