State v. Esser

• Decision Date: 25 May 1962
• Parties: STATE of Wisconsin, Appellant, v. Gregory Raymond ESSER, Respondent.
• Court: Wisconsin Supreme Court

Page 505

115 N.W.2d 505

16 Wis.2d 567

STATE of Wisconsin, Appellant, v. Gregory Raymond ESSER, Respondent.

Supreme Court of Wisconsin.

May 25, 1962.

Gerald Anderson, aged 13, was shot and killed on Sunday, October 28, 1956. Shortly after the event, Gregory Esser, aged 26, hailed a state traffic patrol officer and reported 'a hunting accident and a murder.' The officer testified, 'He said that he was hunting with this boy and he accidentally shot him in the back and then while the boy was lying on the ground he walked up to him and shot him in the head and he said 'If that isn't murder I don't know what is.''

Esser led officers to Anderson's body, was taken into the custody of the sheriff and later gave a statement. A warrant was issued the next day on a charge of first degree murder.

The superior court committed him to Mendota state hospital for observation. Three weeks later the hospital reported: 'He was found to be psychotic or insane manifested by inappropriate emotional reaction and inability to recognize the seriousness of his acts. He is not feeble minded as his I.Q. is 120 which places him in the lower end of the superior group. Our clinical diagnosis is schizophrenic reaction, chronic undifferentiated type.' On November 26, 1956, the superior court found that Esser was insane, postponed trial indefinitely and ordered him confined in central state hospital.

On August 25, 1960, central state hospital reported that Esser had recovered, was able to make a judgment between right and wrong and to confer with his attorney in his defense. Upon waiver of preliminary hearing, the superior court ordered him held for trial in circuit court.

Esser pleaded not guilty, and not guilty by reason of insanity. Before the trial began, Judge Wilkie announced that with respect to the defense of insanity, the court would apply the rule in Draft 4 of the Model Penal Code of the American Law Institute, approved by three justices of this court in a concurring opinion in a prior case. ¹ The rule was incorporated in the instructions to the jury. The jury found Esser not guilty because insane at the time of the shooting.

On February 13, 1961, judgment was entered on the verdict, committing Esser to central state hospital pursuant to sec. 957.11, Stats. The circuit court gave the state permission to appeal on questions of law, and the state appealed.

Additional facts will be stated in the opinion.

John W. Reynolds, Atty. Gen., William A. Platz, Asst. Atty. Gen., William D. Byrne, Dist. Atty., Donald R. McCallum, Deputy Dist. Atty., Madison, for appellant.

Lawton & Cates, Madison, for respondent.

FAIRCHILD, Justice.

The state requested an instruction defining insanity in terms of a mental condition rendering the defendant incapable of distinguishing between right and wrong. ² The language requested was taken from headnotes 18, 19, and 20 of Oborn v. State. ³ The state contends here: (1) The right-wrong definition was part of the common law in force in the territory of Wisconsin at the time our constitution was adopted, and the constitution prohibits the courts from changing it. (2) This definition was in any event a common-law rule of criminal law in force here in 1955 when the legislature enacted the criminal code, ⁴ and under sec. 939.10, Stats., it must remain in force and unchanged until modified by the legislature. (3) This definition ought to be adhered to upon its merits even if the court has power to modify it.

We conclude on the first and second points that this court may properly develop or adopt a new definition of the defense of insanity if it deems necessary in the interests of justice and in the light of present-day knowledge. The majority is not convinced, however, that there is need for a fundamentally different rule, and concludes that the courts in this state should define the defense of insanity in terms of inability, caused by mental illness, to understand the nature and quality of the alleged wrongful act or to distinguish right from wrong with respect to such act.

We then reach the question whether upon a review of the record in this case the state is entitled to a new trial because of the circuit court's use of the definition in the draft code of the American Law Institute in its instructions to the jury, and we conclude that the error does not require reversal.

1. Does the constitution restrict the court's power to develop common law? Sec. 13, art. XIV, of the Wisconsin constitution provides:

'Such parts of the common law as are now in force in the territory of Wisconsin, not inconsistent with this constitution, shall be and continue part of the law of this state until altered or suspended by the legislature.'

It is conceded that there is no reported decision of a court in the territory of Wisconsin defining the defense of insanity. The state contends that the right-wrong rule was part of the common law of England before the American Revolution, was therefore in force in the territory of Wisconsin when our constitution was adopted, and therefore cannot be altered or suspended by the courts.

This argument raises several interesting questions of history and legal philosophy. ⁵ The state's argument assumes that the right-wrong test was a well-developed rule applied by the courts in England before 1776, and that any rule applied by the English courts as part of a common law of that date must necessarily be a part of the common law of the territory in the absence of some modification by statute or decision of a court having jurisdiction over the area now comprising Wisconsin between 1776 and 1836 when the territory of Wisconsin was created. We are unable to find either such certainty as to the defense of insanity in the law of England in the eighteenth century or such certainty that the reception of the common law of England as developed by 1776 into the territory of Wisconsin was as complete and exact as the state assumes.

a. Reception of English common law in Wisconsin. The area now in Wisconsin lay within the Northwest Territory. The Northwest Ordinance of 1787 ⁶ provided that the inhabitants shall always be entitled to the benefit 'of judicial proceedings according to the course of the common law.' The governor and judges of the territory were empowered to adopt laws of the original states, and in 1795 they adopted a former Virginia statute declaring in force 'The common law of England, all statutes or acts of the British parliament made in aid of the common law, prior to the fourth year of the reign of King James the first [1607] (and which are of a general nature, not local to that kingdom) * * *' ⁷ The validity of this adoption of the former Virginia statute is open to question. ⁸

In 1810 the governor and judges of the territory of Michigan enacted a law providing that the acts of the parliament of England and the parliament of Great Britain, the custom of Paris or ancient French common law, the laws and acts of the authorities of Canada, and the laws adopted in the Northwest Territory and the territory of Indiana shall be of no force within the territory of Michigan. ⁹

In 1818 the area now in Wisconsin, which had earlier been a part of the territory of Indiana and then of the territory of Illinois was attached to the territory of Michigan and made subject to its laws. ¹⁰ In 1836 the territory of Wisconsin was created and the laws of the territory of Michigan continued in force. ¹¹ In 1839 the legislature of the territory of Wisconsin repealed the acts of the territory of Michigan except that such repeal was not to revive other acts, and provided that none of the statutes of Great Britain shall be considered the law of the territory. ¹²

In 1864, sixteen years after the adoption of our constitution, this court concluded 'that when our territorial legislature and the framers of our constitution recognized the existence here of the common law, they must be held to have had reference to that law as it existed, modified and amended by English statutes passed prior to the revolution.' ¹³ The opinion makes no reference to the legislative history which we have outlined except that a quotation from an Iowa decision includes a statement that the Ordinance of 1787 made common law the law of the Northwest Territory. Principally the Coburn decision was based upon the proposition that the existence of common law had been assumed from the beginning of the territory and that a void in the legal system would otherwise exist. Decisions similarly based were cited from Michigan ¹⁴ and Iowa. ^{15, 16}

It is clear that there were some English common-law rules which did not become parts of the common law in American jurisdictions. Courts have generally decided that particular English rules were not to be applied locally if deemed unsuitable to local conditions or out of harmony with local institutions. ¹⁷

If, however, Coburn v. Harvey ¹⁸ (and that decision was but sixteen years after the adoption of our constitution) stands for the proposition that a rule of English common law developed and applied by the English courts prior to 1776 is to be deemed to have been in force in the territory of Wisconsin, in the absence of statutory change or determination of unsuitability to the territory, we are unable to find that the right-wrong definition of the defense of insanity had reached that stage of development in England by that year.

b. Defense of insanity in England prior to 1776. The statement of Chief Justice Tindal to the House of Lords, usually referred to as the M'Naghten rule, was made in 1843. ¹⁹

Undoubtedly the views expressed had been widely held and applied by the judges before that year, but it does not follow that they had been crystallized 67 years earlier. The state cites 1 William Hawkins', A Treatise of the Pleas of the Crown, first published in the period 1716 to 1721. While the author makes reference to 'those who are under a natural disability of distinguishing between good...