State v. White, 5724

• Decision Date: 12 May 1954
• Docket Number: No. 5724,5724
• Citation: 1954 NMSC 50,270 P.2d 727,58 N.M. 324
• Parties: STATE v. WHITE.
• Court: New Mexico Supreme Court

Page 727

270 P.2d 727

58 N.M. 324

STATE v. WHITE.

No. 5724.

Supreme Court of New Mexico.

May 12, 1954.

W. T. O'Sullivan, Robert L. White, Heister H. Drum, Albuquerque, N. M., for appellant.

Richard H. Robinson, Atty. Gen., Fred M. Standley, Asst. Atty. Gen., Walter R. Kegel, Asst. Atty. Gen., for appellee.

SEYMOUR, Justice.

Defendant appeals from judgment and sentence of the District Court of Bernalilo County pursuant to verdict of a jury finding defendant guilty of murder in the second degree.

The factual details are of little consequence for purposes of this decision. Briefly, they are: Defendant and one Aimee Bono met in Chicago in 1943. Aimee Bono was of Chinese ancestry and, by reason thereof, was in danger of deportation. For this or other reasons, defendant married her in 1947. They lived in various parts of the county before moving to Santa Fe, New Mexico. In Santa Fe, the deceased Aimee Bono White was employed as a secretary by one Wynn H. Hickam, agent for an insurance company. The relationship between Aimee Bono White and her employer increased in intimacy to the point that the defendant was threatening the lives of both his wife and her employer, and the deceased, in turn, was asking her husband, the defendant, for a divorce in order that she might marry Wynn Hickam. This situation culminated in the following series of events: On the 19th day of January, 1953, the deceased ran away from her home and went to San Francisco; after a frantic search by the defendant, her whereabouts, already known to Hickam, was discovered by defendant, and deceased was persuaded to return home; in the process of return, while her husband was trying to meet her in Albuquerque, Hickam took her from the train in Gallup, New Mexico, and brought her by car to the Zia Lodge in Albuquerque. From there, deceased telephoned defendant in Santa Fe on January 26, 1953. Defendant purchased a gun under an assumed name, borrowed a car, went to Albuquerque and, after some conversation which concluded with deceased's spitting in the face of defendant, he shot her five times, killing her. Later that night, through friends, he turned himself over to the police.

At the commencement of trial, over objection by the state, defendant changed his plea from 'not guilty' to 'not guilty by reason of an insane state existing at the time of the offense in question.'

Three points are relied upon for reversal. As stated in appellant's brief, the first is:

'Point one

'The present rule in this jurisdiction respecting the defense of insanity in criminal cases always presupposes substantial evidence of a diseased mind in the first instance, plus substantial evidence

'1. That such diseased mind rendered the accused incapable of knowing the nature and quality of his act; or

'2. That such diseased mind rendered the accused incapable of distinguishing between right and wrong; or

'3. That such diseased mind rendered the accused incapable of exercising the normal governing power of the will so as to control his actions under the compulsion of an insane impulse to act.'

There is no difference of opinion as to the present rule in this jurisdiction insofar as it is stated in appellant's point one through Arabic numerals 1 and 2. A serious question is raised as to that phase of the so-called defense of insanity expressed under Arabic numeral 3. It is the contention of the state that the ultimate and final test of the defense of insanity in criminal cases lies in the answer to the question of whether or not the defendant, by reason of a diseased mind, was rendered incapable of distinguishing between right and wrong. In support of this contention, the state relies upon State v. Roy, 1936, 40 N.M. 397, 60 P.2d 646, 110 A.L.R. 1, and State v. Moore, 1938, 42 N.M. 135, 76 P.2d 19. There is certainly language in both of these decisions to sustain this position:

'We have not departed from the 'right and wrong test' as established in the famous McNaughten Case, 10 Clark & F. 199, 8 Eng. Reprint, 718, which is the generally accepted doctrine of the English and American courts. The capacity of the accused to distinguish right from wrong in respect to the act charged as a crime at the time of its commission is made the test of his responsibility.' State v. Roy, supra [40 N.M. 397, 60 P.2d 650.]

'Without going into an academic, physiological, and psychological discussion as to the difference between the irresistible impulse rule and the 'right and wrong test' rule as applicable to criminal guilt, we merely reassert our adherence to the rule enunciated by this court in the case of State v. Roy * * * where we said: 'The capacity of the accused to distinguish right from wrong in respect to the act charged as a crime at the time of its commission is made the test of his responsibility." State v. Moore, supra [42 N.M. 135, 76 P.2d 24.]

On the other hand, appellant contends for an extension of the M'Naghten Rules, 'by the addition of a third limb to meet the case of insanity affecting not the reason but the will.' The extension sought by the appellant is that recommended by the British Medical Association 'to cover cases where the accused 'was labouring as a result of disease of the mind, under * * * a disorder of emotion such that, while appreciating the nature and quality of the act, and that it was wrong, he did not possess sufficient power to prevent himself from committing it." Royal Commission on Capital Punishment, 1949-1953 Report, p. 104. Appellant finds support for this so-called extension of the defense of insanity in criminal cases in Territory v. Kennedy, 1910, 15 N.M. 556, 110 P. 854; State v. Folk, 1952, 56 N.M. 583, 247 P.2d 165, and in considerable of the language of the decision in State v. Moore, supra. Without discussing our reasons therefor, in our judgment the Kennedy case and the Folk case are not helpful. On the other hand, the language in the Moore case, which so bluntly holds that the right and wrong test is the law of New Mexico, certainly states and apparently approves of the extension contended for by appellant. The language referred to appears at pages 158 and 159 of 42 N.M., 76 P.2d 19. We find ourselves as pointed out in appellant's brief, in a position of doubt as to the conclusion already reached in the case law of New Mexico. This confusion has resulted in text writers' citing New Mexico cases on both sides of the controversial argument. In this connection, it is interesting to note that the attorney general, in his brief, recommends a reconsideration of the decisions of this Court at an appropriate time to determine whether or not the rules regarding insanity as a defense to crime should be broadened to include the so-called irresistible impulse theory. In fairness to him, he further contends that this is not an appropriate time.

The legal question is posed to this Court as a result of instruction numbered eighteen given by the court, which aimed at, but failed to state properly, this theory propounded by appellant, and by defendant's requested instruction numbered three which was refused by the trial court and which appellant contends correctly states the theory. There is no need to quote or discuss that portion of instruction eighteen given by the court and intended to cover this idea. It is admittedly defective and this was called to the trial court's attention. However under our rules stated at Secs 19-101 rule 51(g) and 42-1117, 1941 Comp., as interpreted in State v. Compton, 1953, 57 N.M. 227, 257 P.2d 915, in order for appellant to preserve the trial court's error for review, it is necessary that he submit a proper instruction. Defendant's requested instruction number three, refused by the trial court, reads as follows:

'If the defendant, at the time he committed the act with which he is charged here, was conscious of the act he was committing and knew its consequences but nevertheless, by reason of a diseased mind, was so wrought up as to be deprived of the normal governing power of the will and, in consequence thereof, was incapable of controlling his actions, then you will in that case acquit him.'

There are two questions: Should this Court adopt an extension of the M'Naghten Rule? And, if so, does the requested instruction of appellant properly state the law of such an extension?

Our conclusions as to these two questions are that the extension should be made and that defendant's requested instruction does not properly state the law.

We again quote the formula proposed by the British Medical Association, namely, that a successful defense of insanity is established where it is shown that the accused 'was labouring, as a result of disease of the mind, under * * * a disorder of emotion such that, while appreciating the nature and quality of the act, and that it was wrong, he did not possess sufficient power to prevent himself from committing it.' Appellant's requested instruction numbered three, relying on the Kennedy case and upon the words, 'a disorder of emotion' used in the Medical Association formula, reads in part as follows: '* * * by reason of a diseased mind, was so wrought up as to be deprived of the normal governing power of the will * * *' In the quoted part of the requested instruction, there are two ideas which this Court specifically refuses to acknowledge with approval. The first is the concept injected into the requested instruction by the words, 'so wrought up.' The only further rule of law as to the defense of insanity which this Court is willing to adopt is as follows: Assuming defendant's knowledge of the nature and quality of his act and his knowledge that the act is wrong, if, by reason of disease of the mind, defendant has been peprived of or lost the power of his will which would enable him to prevent himself from doing the act, then he cannot be found guilty. We do not believe that the idea of excitement or impulsive action has any place in such an instruction. As stated by one writer,...