State v. Garver

• Decision Date: 19 December 1950
• Citation: 225 P.2d 771,190 Or. 291
• Parties: STATE v. GARVER.
• Court: Oregon Supreme Court

225 P.2d 771

190 Or. 291

STATE v. GARVER.

Supreme Court of Oregon.

December 19, 1950

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Claude M. Johns, Jr., of Portland, (Henry A. Buehner, of Portland, on the brief), for appellant.

J. Raymond Carskadon and Charles E. Raymond, Deputy Dist. Attys. for Multnomah County, of Portland, (John B. McCourt, Dist. Atty for Multnomah County, of Portland, on the brief), for respondent.

Before LUSK, C. J and BRAND, ROSSMAN, HAY, LATOURETTE and WARNER, JJ.

LUSK, Chief Justice.

The defendant Robert Edgar Garver, has appealed from a conviction of first degree murder. The jury, by its verdict, did not recommend life imprisonment, and the death penalty followed as a matter of course.

The indictment charged Garver and two others, Norman Carroll Andrus and Leland Delbert Marshall, with shooting and killing one Ancell Abbott in the course of an attempt to commit the crime of assault and robbery being armed with a dangerous weapon.

The proof showed that on the early evening of January 3, 1949, Garver, then twenty-four years of age, met his accomplices in a tavern in downtown Portland, and proposed to them that they rob Abbott who was a janitor in the Fred Meyer Store located at Fourth Avenue and Morrison Street. Garver claimed to have information that Abbott would be leaving the store late in the evening carrying about $5,000 in a shopping bag. Acting upon Garver's suggestions, the other two stole an automobile, secured two guns, and rejoined Garver at about nine o'clock in the evening in the vicinity of the store. Garver armed himself with one of the guns, a .32 automatic pistol. They waited until Abbott appeared carrying the shopping bag, and followed him several blocks in the stolen automobile to Tenth Avenue and Alder Street, where they parked the car in a parking lot. Andrus, the driver, remained in the car while the other two got out and held up Abbott with guns in hand. The defendant Garver shot Abbott three times, and the three desperadoes fled in the automobile, taking with them the victim's shopping bag, which, as it turned out, contained no money but only some clothes. As they sped away from the scene of the crime, Garver said, according to Marshall's testimony, 'he had to shoot the fellow, he started to fumble for a gun.' In fact, Abbott was not armed. He died of the gunshot wounds.

In bare outline that is the story of the commission of the crime. It occurred on a brightly lighted street at about the hour of ten o'clock at night, and was witnessed by several persons who testified to what they saw. Marshall and Andrus pleaded guilty and were witnesses for the state. There is a suggestion in the defendant's brief that the testimony of these accomplices was not sufficiently corroborated, but there was no motion for a directed verdict and no assignment of error based upon such a claim. Nevertheless, we have examined with care the entire transcript, which contains 953 pages of testimony, and find that, without the evidence of the accomplices, the crime and the defendant's part in it were established by uncontradicted evidence which fully warranted submission of the case to the jury.

The actual substantial controversy arises out of the defense of insanity.

It is contended that the court erred in instructing the jury that, in determining whether this defense had been established, they should be guided by the so-called right or wrong test. The question was raised on the trial by requests for instructions and exceptions to instructions given. The instructions given are almost word for word identical with those which this court in State v. Brumfield, 104 Or. 506, 537, 209 P. 120, 130, approved as covering 'all phases of the question of insanity as a defense and of the evidence necessary to establish it', and included the following:

'Insanity, to excuse crime, must be such a disease of the mind as dethrones reason and renders the person incapable of understanding the nature, quality and consequences of his act, or of distinguishing between right and wrong in relation to such act. It is not every eccentricity of mind, however well-established, that will excuse the commission of an act otherwise criminal.

A morbid propensity or inclination to commit prohibited acts, existing in the mind of a person who is not shown to have been incapable of knowing the wrongfulness of such acts, forms no defense to the prosecution therefor. The test of criminal responsibility is the power to discriminate between right and wrong.'

These instructions conform to the law as laid down by this court in numerous cases, among which are State v. Layton, 174 Or. 217, 226, 148 P.2d 522; State v. Wallace, 170 Or. 60, 79, 131 P.2d 222; State v. Riley, 147 Or. 89, 99, 30 P.2d 1041; State v. Grayson, 126 Or. 560, 575, 270 P. 404; State v. Hassing, 60 Or. 81, 86, 118 P. 195. The defendant freely recognizes this, but insists that the doctrine of our decisions should be abandoned in favor of what is claimed to be the modern and more enlightened and civilized rule, applied in many courts, which includes irresistible impulse within the definition of insanity as a defense to crime. This contention has been repeatedly urged upon this court and as often rejected, both on grounds of general law and because of the legislative command of § 23122, O.C.L.A., which reads: 'A morbid propensity to commit prohibited acts, existing in the mind of a person, who is not shown to have been incapable of knowing the wrongfulness of such acts, forms no defense to a prosecution therefor.' As indicated in State v. Wallace, supra, and State v. Hassing, supra, this statute ties the hands of the court and prevents it from liberalizing the rules governing the insanity defense, even though the court should be of the opinion that those rules do not take sufficient account of the discoveries of modern medical science. We are unable, therefore, to sustain this assignment of error.

The most serious question in the case is presented by the defendant's contention that the court erred in refusing to give to the jury in its charge the following instruction requested by the defendant. 'I instruct you that the law presumes that insanity having once been shown to exist continues until the contrary is made to appear. In other words, a person who has been adjudicated insane is to be deemed to continue in such a mental state until such a time as evidence of his sanity is introduced.'

It appears from the evidence that the defendant was born on August 24, 1925. He had a record of juvenile delinquency, commencing at about the age of ten. He was in the Army during World War II, and was honorably discharged on May 5, 1943, for disability, upon the basis of a diagnosis made when he was admitted into Barnes General Hospital, Vancouver, Washington, on March 27, 1943, as follows: 'Psychoneurosis, conversion hysteria, severe, manifested by complete amnesia of 19 days duration, cause undetermined.'

In September, 1945, the defendant was held in the Multnomah County jail on a burglary charge. With eleven other prisoners he broke jail. He was later indicted and entered a plea of not guilty on the ground of insanity. He waived his right to a trial by jury, and, on October 29, 1945, after a trial before the court, he was found not guilty on the ground of insanity, the order reciting that he was unable to appreciate the consequences of his act, that he was insane both at the time of its commission and at the time of the trial, and unable to participate and assist in the conduct of his defense.

On November 7, 1945, he was admitted to the Veteran's Hospital at Roseburg, Oregon, which is maintained principally for the care of nervous and mental diseases. A diagnosis, 'Without psychosis psychopathic personality with asocial trends', was made. On December 17, 1945, he was granted leave of absence from the hospital in custody of his mother. This was changed to a ninety-day trial visit, at the expiration of which, on March 17, 1946, he was discharged. The hospital record recites: 'No communications have been received from the veteran, and it is presumed that he is adjusting well outside the hospital.'

The presumption proved to be ill-founded, as on March 18, 1946, the day after his discharge from the Roseburg hospital, the defendant was committed by the county judge of Coos County to the Oregon State Hospital as a mentally diseased person. This action followed his arrest for attempted burglary in a bus station in Coos Bay. He was admitted to the State Hospital on March 20, 1946. A provisional diagnosis of 'psychoneurosis hysteria' was made. On April 2, 1946, he escaped, and on April 3 was given the status of parolee in care of his mother. In May, 1948, while still paroled to his mother, he was in jail in Clark County, Washington, and, at his mother's request, was there examined by Dr. Gerhard B Haugen, a psychiatrist. In the report of his examination made to the district attorney of Clark County under date of June 3, 1948, Dr. Haugen, after stating, on the basis of what he considered reliable history, that 'The basic pattern present is that of a Psychopathic Inferiority', concluded: 'He is not fit to be at large either from the standpoint of the protection of society or for his own safety.' Dr. Haugen made the following, among other, suggestions: 'In view of the fact that there is a strong possibility that this man is at this time psychotic and does not clearly know right from wrong, a period of observation in a hospital equipped to handle mentally ill persons would aid in clearing up this question.' 'Inasmuch as in his previous hospitalization the sympathies of his family have prompted them to obtain his release, it would seem advisable that the...