State v. Strasburg

• Decision Date: 10 September 1910
• Citation: 60 Wash. 106,110 P. 1020
• Court: Washington Supreme Court
• Parties: STATE v. STRASBURG.

110 P. 1020

60 Wash. 106

STATE v. STRASBURG.

Supreme Court of Washington, En Banc.

September 10, 1910

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Martin Strasburg was convicted of assault in the first degree, and he appeals. Reversed.

Alfred Heller and Wm. A. Holzheimer, for appellant.

George F. Vanderveer, for the State.

E. C Hughes, Harold Preston, H. W. Craven, Milo A. Root, and George E. De Steiguer, amici curiae.

PARKER, J.

The prosecuting attorney for King county by information charged the defendant with the crime of assault in the first degree as follows: 'He, said Martin Strasburg, in the county of King, state of Washington, on the 3rd day of September, A. D 1909, did willfully, unlawfully, and feloniously make an assault upon one Otto Peeck with a firearm, to wit, with a revolver-pistol, then and there loaded with powder and ball which he, said Martin Strasburg, then and there had and held, and did then and there willfully, unlawfully and feloniously, with said revolver-pistol, shoot at, toward and into the body of said Otto Peeck, with intent then and there willfully, unlawfully and feloniously to kill said Otto Peeck.' The offense charged by this information is defined by section 2413 of Remington and Ballinger's Code, as follows: 'Every person who, with intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another, shall assault another with a fire arm or any deadly weapon, or by any force or means likely to produce death * * * shall be guilty of assault in the first degree and shall be punished by imprisonment in the state penitentiary for not less than five years.' The trial resulted in a verdict of guilty against the defendant. His motion for a new trial being denied, judgment was rendered against him upon the verdict. From this judgment, the defendant has appealed.

The principal grounds relied upon by learned counsel for defendant to secure a reversal of the judgment is that the trial court erred in refusing to admit evidence tending to prove that the defendant at the time charged as the commission of the crime was insane and incapable of understanding the nature and quality of his act; and also that the court erred in instructing the jury 'that, under the laws of this state, it is no defense to a criminal charge that the person charged was at the time of the commission of the offense unable, by reason of his insanity, idiocy or imbecility to comprehend the nature and quality of the act committed, or to understand that it was wrong.'

In support of these rulings of the learned trial court, counsel for the state rely upon the provisions of section 7 of our New Criminal Code (section 2259, Rem. & Bal. Code; Laws 1909, p. 891, § 7), providing as follows: 'It shall be no defense to a person charged with the commission of a crime that at the time of its commission he was unable, by reason of his insanity, idiocy or imbecility, to comprehend the nature and quality of the act committed, or to understand that it was wrong; or that he was afflicted with a morbid propensity to commit prohibited acts; nor shall any testimony or other proof thereof be admitted in evidence.' It is contended by learned counsel for appellant that this statute withholds from him rights guaranteed by our state Constitution, and particularly those rights guaranteed by the following provisions thereof: Article 1, § 3: 'No person shall be deprived of life, liberty, or property without due process of law.' Article 1, § 21: 'The right of trial by jury shall remain inviolate.' We are then confronted with the novel and grave question: Has the Legislature the power under our Constitution to enact a law taking away from a defendant accused of crime the opportunity to show in his defense the fact that at the time of the commission of the act charged as a crime against him he was insane, and, by reason thereof, was unable to comprehend the nature and quality of the act committed? We are not advised of any instance where the legislative power of any common-law country has ever enacted a law prohibiting all consideration by the jury of the question of the insanity of the accused at the time of the commission of the act relied upon as the offense charged against him, when such insanity is sought to be shown in his behalf in connection with the question of his guilt. We believe it reasonably safe to assert that this is the first instance of any such enactment. This fact, of course, is not within itself a reason for holding that the Legislature of our state has no such power; but, in view of the source of our jurisprudence and the spirit of our institutions, this fact does furnish a reason for us to view this assumption of power with grave concern, and for a more than ordinary critical examination of its alleged source. This is, indeed, an occasion for heeding the admonition of the concluding section of our constitutional bill of rights, which reads: 'A frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.' Article 1, § 32, State Const.

At the outset, then, let us recur to some fundamental principles touching the effect of the insanity of one accused of crime at the time of committing the act charged against him upon the question of his guilt. It is possible we may thus discover that the mental responsibility of the accused is a fact entering into the question of his guilt, upon which he has a right of trial by jury, the same as upon any other fact inherent in that question, even as the fact that the muscular action of his physical body did or did not commit the physical act charged as a crime against him. In the text of 4 Blackstone's Commentaries, pp. 20, 21, 24, it is stated 'All the several pleas and excuses which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto may be reduced to this single consideration, the want or defect of will. An involuntary act, as it has no claim to merit, so neither can it induce any guilt; the concurrence of the will, when it has its choice either to do or to avoid the fact in question, being the only thing that renders human actions either praiseworthy or culpable. Indeed, to make a complete crime cognizable by human laws, there must be both a will and an act. * * * The second case of a deficiency in will, which excuses from the guilt of crimes, arises also from a defective or vitiated understanding, viz., in an idiot or a lunatic. For the rule of law as to the latter, which may easily be adapted also to the former, is that 'furiosus furore solum punitur.' In criminal cases, therefore, idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities; no, not even for treason itself.' In 1 Russell on Crimes, p. 2, it is said: 'Without the consent of the will, human actions cannot be considered as culpable; nor where there is no will to commit an offense is there any just reason why a party should incur the penalties of a law made for the punishment of crimes and offenses.' The doctrine as understood in the United States is stated in 16 Am. & Eng. Enc. of Law (2d Ed.) 618, as follows: 'From the earliest period of the common law, no criminal responsibility could attach where the accused was so utterly deprived of reason as to be incapable of forming a guilty or criminal intent.' This is in accord with the view of our leading American text-writers. 1 Wharton's Criminal Law (10th Ed.) § 33; 1 Bishop's New Criminal Law, § 375; 1 McClain on Criminal Law, § 154. Mr. Tiedeman in his work on State and Federal Control of Persons and Property (section 47) says: 'It is probably the rule of law in every civilized country that no insane man can be guilty of a crime, and hence cannot be punished for what would otherwise be a crime. The ground for this exception to criminal responsibility is that there must be a criminal intent in order that the act may constitute a crime, and that an insane person cannot do an intentional wrong. Insanity, when it is proven to have existed at the time when the offense was committed, constitutes a good defense, and the defendant is entitled to an acquittal.' In the case of Commonwealth v. Rogers, 7 Metc. 500, 41 Am. Dec. 458, Chief Justice Shaw, speaking for the Supreme Judicial Court of Massachusetts, said: 'In order to constitute a crime, a person must have intelligence and capacity enough to have a criminal intent and purpose; and if his reason and mental powers are either so deficient that he has no will, no conscience, or controlling mental power, or if, through the overwhelming violence of mental disease, his intellectual power is for the time obliterated, he is not a responsible moral agent, and is not punishable for criminal acts.' Mr. Freeman, the able editor of the American Decisions, in his note to State v. Marler, 36 Am. Dec. 402, says: 'It was always a settled rule of the common law that a person could not be legally punished for any act committed by him while he was insane. * * * The common law never intended to inflict punishment upon one whom it believed to be insane at the time when he did the act charged as a crime; for the law holds that a criminal intent is an essential element in every crime, and, if by reason of insanity a person be incapable of forming any intent, he cannot be regarded by the law as guilty.' In 12 Cyc. 164, the doctrine is stated in the text in substantial accord with the above quotations, and there supported by a great array of cited authorities. Indeed, they are apparently unanimous. The doctrine has been recognized by our territorial Supreme Court as well as by this court. McAllister v. Territory, 1 Wash. T. 360...