State v. Maish

• Court: Washington Supreme Court
• Writing for the Court: JEFFERS, Justice.
• Citation: State v. Maish, 185 P.2d 486, 29 Wn.2d 52 (Wash. 1947)
• Decision Date: 09 October 1947
• Docket Number: 30238.
• Parties: STATE v. MAISH.

185 P.2d 486

29 Wn.2d 52

STATE v. MAISH.

No. 30238.

Supreme Court of Washington

October 9, 1947

Department 2

Joseph Henry Maish was convicted of first-degree murder, and he appeals.

Affirmed.

Appeal from Superior Court, Clark County; Charles W. Hall, judge.

Schaefer & Hall, of Vancouver, for appellant.

R DeWitt Jones and Dale W. Read, both of Vancouver, for respondent.

JEFFERS Justice.

On December 23, 1946, defendant, Joseph Henry Maish, was, by an information filed by the prosecuting attorney for Clark county, charged with the crime of murder in the first degree committed as follows, to-wit:

'That he, the said Joseph Henry Maish, did, in the county of Clark, state of Washington, on or about the 21st day of December, 1946, while in an attempt to commit rape, and while withdrawing from the scene of a burglary, did unlawfully and feloniously kill a human being, namely LaDonna Toscas, by then and there stabbing her with a knife about the throat and back inflicting wounds which were the immediate and proximate cause of her death which occurred on the 21st day of December, 1946.'

Defendant was duly arraigned on January 31, 1947, and being personally present in court and represented by counsel, entered an oral plea of not guilty to the information, and in addition filed the following written plea:

'Comes now the defendant herein in open court by and through his undersigned attorneys of record, and in addition to the plea of not guilty, files herein his plea as follows:

'(1) That at the time and place of the commission of the crime charged, the said defendant was insane or mentally irresponsible.

'(2) That said insanity or mental irresponsibility still exists.

'(3) That at said time and place of the commission of said act charged, the defendant was motivated by an irresistible impulse.'

The cause came on for hearing Before the court and jury on March 24, 1947. Many witnesses were sworn and exhibits introduced on behalf of both the state and defendant.

While defendant did not take the stand, three statements made by him were introduced in evidence without objection. Two of these statements were made to police officers of Vancouver the night of the alleged murder, and the third was made to a juvenile officer the morning after the killing, or on December 22, 1946.

At the close of the case, the court gave to the jury, among others, the following instructions: 'Instruction No. 6: In addition to the general plea of 'Not guilty,' the defendant has interposed a special plea setting up that at the time and place of the commission of the crime charged, the said defendant was insane or mentally irresponsible, and that said insanity or mental irresponsibility still exists.

'The burden of proving this special defense rests upon the defendant and the measure of proof required of him in this respect is proof by a fair preponderance of the evidence. Unless the defendant proves this defense to you by a fair preponderance of the evidence the defendant is presumed to be sane and mentally responsible and to intend the natural and usual consequences of his own acts.'

'Instruction No. 10: With regard to defendant's plea that he was insane or mentally irresponsible at the time of the commission of the act charged against him, you are instructed that it will be your duty to find him not guilty by reason of such insanity or mental irresponsibility if you find from the evidence that at that time he did not have the ability to distinguish be tween right and wrong with respect to that act. If you find that his mind was so deranged and disordered that he did not have the mental power to choose between right and wrong with respect to that act and that such mental disorder or defect was the efficient cause of his act and that he would not have committed the act but for that affection, then he is not responsible in law and should be acquitted.

'You are cautioned, however, that one who is otherwise sane will not be excused from a crime he has committed while his reason or will power are temporarily suspended not by an inherent defect or disorder of the mind but by anger, fear, lust, or other passion. So-called emotional insanity will not excuse a crime.'

No exceptions to the above instructions were taken by defendant, nor in fact to any of the instructions given, and it follows that such instructions became the law of the case on the issues covered by them.

Defendant requested the trial court to give the following instruction on his theory of irresistible impulse:

'You are instructed that if you believe from the evidence that at the time of committing the acts charged in the information, the defendant was suffering from such a perverted and deranged condition of his mental faculties as to render him incapable of distinguishing between right and wrong, or unconscious at such time of the nature of the act charged in the indictment while committing the same, or where although conscious of them and able to distinguish between right and wrong, and to know the acts were wrong, yet his mind and his will the governing power of his mind was, otherwise involuntarily, so completely destroyed that his action was not subject to it but beyond his control, it will be your duty to acquit the defendant, and in such case your verdict shall be not guilty.'

The trial court refused to give the requested instruction.

On March 28, 1947, the jury returned a verdict of guilty as charged, and by a special verdict ordered the death penalty to be imposed.

A motion for new trial was made by defendant and denied, and on April 7, 1947, judgment and sentence was pronounced and filed, in accordance with the verdict and special verdict.

Defendant has appealed from the judgment entered, and his only assignment of error is that the court erred in refusing to give the requested instruction.

Rem.Rev.Stat. § 2108 provides:

'There are but three pleas to the indictment or information: A plea of,----

'1. Guilty;

'2. Not guilty;

'3. A former judgment of conviction or acquittal of the offense charged, which may be pleaded with or without the plea of not guilty.'

There is also what might be termed a fourth plea. Rem.Rev.Stat. § 2174, provides: 'When it is desired to interpose the defense of insanity or mental irresponsibility on behalf of one charged with a crime, the defendant, his counsel or other person authorized by law to appear and act for him, shall at the time of pleading to the information or indictment file a plea in writing in addition to the plea or pleas required or permitted by other laws than this setting up (1) his insanity or mental irresponsibility at the time of the commission of the crime charged, and (2) whether the insanity or mental irresponsibility still exists, or (3) whether the defendant has become sane or mentally responsible between the time of the commission of the crime and the time of the trial. The plea may be interposed at any time thereafter, Before the submission of the cause to the jury, if it be proven that the insanity or mental irresponsibility of the defendant at the time of the crime was not Before known to any person authorized to interpose a plea.'

Rem.Rev.Stat. § 2175, provides for a special verdict on acquittal when a plea of insanity is interposed, and § 2176 provides for special verdicts.

These statutes were all followed by the trial court in the instant case.

It is apparent that our statutes do not specifically recognize the plea of irresistible impulse as a separate and distinct defense to a criminal act. However, in the cases where this defense has been raised, it seems to have been injected into the case under the plea of insanity; in other words, that the irresistible impulse is induced by and grows out of some mental disease.

Irresistible impulse is defined by 14 Am.Jur. 793, § 35, as follows:

'Irresistible impulse as recognized by the courts is an impulse induced by, and growing out of, some mental disease affecting the volitive, as distinguished from the perceptive, powers, so that the person afflicted, while able to understand the nature and consequences of the act charged against him and to perceive that it is wrong, is unable, because of such mental disease, to resist the impulse to do it. It is to be distinguished from mere passion or overwhelming emotion not growing out of, and connected with, a disease of the mind. Frenzy arising solely from the passion of anger and jealousy, regardless of how furious, is not insanity.'

Theoretically at least, the first part of the above definition is the basis upon which the defense has been recognized and accepted in some jurisdictions.

Appellant begins his argument by quoting from Weihofen on Insanity as a Defense in Criminal Law, at page 44, as follows:

"All courts agree that knowledge of right and wrong is a correct test of responsibility, and that a person so mentally disordered as to be incapable of knowing that a particular act is wrongful, should not be punished for committing it. The question upon which courts differ is whether this is the only test. The majority of states hold that it is, and that a person who was incapable [capable] of knowing the wrongfulness of a given act is accountable to the law if he commits it. A large minority, however, hold that this test is not sufficient in all cases, and that a person who knew he was committing an act which was morally wrong and prohibited by law may nevertheless be excused from responsibility if he lacked the power of conscious volition and inhibition (freedom of will) to resist the impulse to commit it."

Appellant continues to quote from Mr. Weihofen, a part of his quotation being as follows:

"The states which accept irresistible impulse as a defense to crime...