State v. Waugh, 10059

• Citation: 127 N.W.2d 429,80 S.D. 503
• Decision Date: 08 April 1964
• Docket Number: No. 10059,10059
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Beverly WAUGH, Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 429

127 N.W.2d 429

80 S.D. 503

STATE of South Dakota, Plaintiff and Respondent, v. Beverly WAUGH, Defendant and Appellant.

No. 10059.

Supreme Court of South Dakota.

April 8, 1964.

Samuel W. Masten, Canton, for defendant and appellant.

Frank L. Farrar, Atty. Gen., Alfred E. Dirks, Asst. Atty. Gen., Pierre, H. L. Hollmann, State's Atty., Chamberlain, for plaintiff and respondent.

RENTTO, Judge.

Beverly Waugh was arraigned on an information charging her with the crime of murder in the death of one Myron Menzie. To this she entered a plea of not guilty and an additional plea of not guilty by reason of insanity. The jury found her guilty of manslaughter in the first degree. She appeals from the judgment entered on October 3, 1962 sentencing her to life imprisonment. The sufficiency of the evidence to justify the verdict is not questioned. Her assignments present several claimed trial errors, but she emphasizes those which question an instruction given on the issue of insanity.

Defendant was a native of the Chamberlain, South Dakota, area. As a child she had difficulty with her studies in school, but did complete eight grades after which she went to work in a commercial laundry doing menial tasks. Her intelligence rating was on the low side of normal. Socially she was a withdrawn type of person. Her mannerisms and thinking were typically male progressing to the point that she began to display a Lesbian behavior pattern. At the time of the incident involved she was 24 years of age.

In the year prior to the homicide in question she became interested in a 19-year-old girl employed in the same laundry. This developed into a serious love affair. During this relationship the other girl became romantically involved with Myron Menzie, culminating in their engagement. The latter relationship increasingly disturbed the defendant to the degree that she made threats against his life. Late in the afternoon of May 30, 1962, defendant observed these two together in his car in Pukwana, South Dakota. She followed their car to Chamberlain, where she intercepted it on one of the downtown streets about 7 p. m.

From the evidence as to what happened next the jury could find that the defendant got out of her car, carrying a 22-rifle, and told the deceased to get out of his car. This he refused to do. She then walked over to the decedent's car, opened the door on the driver's side, and told him to get out of the car or she would shoot him there. Upon his refusal of her request she shot him. The bullet which entered his chest passed through a portion of his lung, heart and liver. He was dead when the doctor arrived at the scene a short time after the shooting.

In its Instruction No. 8, being 520.06-D of the South Dakota Pattern Jury Instructions, the court explained our right and wrong rule of testing criminal responsibility, as set out in SDC 13.0201, see also State v. Leehman, 2 S.D. 171, 49 N.W. 3, State v. Violett, S.D., 111 N.W.2d 598, State v. Behan, S.D., 124 N.W.2d 179, and defined insanity. Defendant in argument has criticized the rule, but since it is of statutory origin any changes therein must come from the legislature. She also finds fault with the definition of insanity and urges that we alter it in the light of claimed advances made in this field by the medical sciences in recent years. On this appeal we may not consider that matter because no objection was made or exception taken to this part of the instruction, State v. Poppenga, 76 S.D. 592, 83 N.W.2d 518, but this should not be read to imply our approval of such definition.

Objection, however, was made to that part of the instruction dealing with the burden of proof on the issue of insanity. The remainder of the questioned instruction is as follows:

'You are further instructed that the law does not excuse the commission of the crime unless the insanity is of such a character that it actually renders the person incapable of distinguishing between right and wrong in respect to the particular act charged at the time of its commission; but to establish insanity as a defense, positive or direct testimony is not required, nor is it necessary to establish this defense beyond a reasonable doubt. It is sufficient if the jury is reasonably satisfied by the weight or preponderance of the testimony that the accused, Beverly Waugh, was, at the time she committed the act, if she did commit it, incapable of distinguishing between right and wrong.

'Therefore, the court instructs the jury that if you believe from all the evidence beyond a reasonable doubt that Myron Menzie is dead, and that the defendant, Beverly Waugh, killed the said Myron Menzie, and if you delieve that the defendant at the time was so perverted and deranged in one or more of her mental faculties as to be incapable of understanding, at the time she killed Myron Menzie, if you find beyond a reasonable doubt that she did kill him, that such killing was wrong, and that the defendant, Beverly Waugh, at the time, was incapable of understanding that this act of killing was a violation of the laws of God and society, if the jury finds that she was so insane, you should find her not guilty by reason of insanity. The law does not excuse the crime unless the derangement is so great that it actually renders a person incapable, at the time of its commission, of distinguishing between right and wrong in respect to the particular act charged and proved against her.

'For the purpose of throwing light upon the mental condition of the accused at the time of the alleged offense, the jury may consider evidence of her mental state both before and after that time.

'Temporary insanity, as well as insanity of longer duration, is recognized by the law. If, from all the evidence in the case, the jury has a reasonable doubt whether the defendant was sant at the time of the alleged offense, she should be acquitted, even though it appears she was sane at earlier and later times.'

The objection to this portion of the instruction complained that it placed an undue burden on her and pointed out that where insanity has through the evidence become an issue it is the burden of the state to prove beyond a reasonable doubt that the defendant was sane.

The following portion of Instruction No. 9 is also pertinent to this issue:

'The jury is further instructed that every person is presumed to be sane until the contrary is shown. If no evidence of insanity has been given, then you would presume the defendant to be sane, and to be responsible for her act. However, when, as in this case, evidence has been introduced tending to prove the defendant is not sane, then the question of whether or not the defendant is responsible for her acts becomes a question for you to determine from all the evidence bearing upon it; and if, after a careful consideration of all the evidence in this case, you believe beyond a reasonable doubt that the defendant shot and killed the deceased in the manner and form charged in the information, and you further believe that the defendant, at the time of the killing, was a lunatic or insane person, or was a person of unsound mind, or...