APPEAL from a judgment of the Superior Court of the County of Pima. Wm. G. Hall, Judge. Judgment affirmed.
Mr. Joe Conway, Attorney General, Mr. W. E. Polley, Assistant Attorney General, and Mr. J. M. Johnson, County Attorney, for appellee.
Mr. Greg Garcia, for Appellant.
[60 Ariz. 94] LOCKWOOD, C.J.
Elisandro Macias, defendant, was informed against by the county attorney of Pima County, for the crime of murder in the first degree. Before the case was set for trial, defendant's attorney filed an affidavit with the court claiming that defendant was unable on account of his mental condition to properly defend any action brought against him. § 44-1701, Arizona Code 1939. The matter was heard and a large amount of testimony was taken, after which the court [60 Ariz. 95] held that defendant's mental condition was not such that he was unable to properly assist in the defense of the action.
The case came on for trial on the main issue before a jury. It was not disputed at the trial that defendant had killed one Abdo Hage by stabbing him to death with a knife. Defendant himself took the stand and freely admitted the killing, but gave as an excuse therefor that the deceased had insulted defendant's mother by referring to her in an approbrious manner and that this conduct alone was the cause of the killing. The state, on the other hand, offered evidence tending to show that defendant had gone to the store of the deceased for the purpose of robbing him, and had killed him while engaged in such a robbery.
The chief defense, however, was that defendant at the time of the killing was insane, and much testimony was offered by both the state and defendant upon this point. The jury, by its verdict, determined that defendant was sane, and that the murder was in the first degree, and fixed the penalty at death, whereupon this appeal was taken.
There are four assignments of error which we will consider in their proper order. The first is that the instructions of the trial court in regard to the defense of insanity were erroneous, ambiguous and confusing. The particular instruction objected to reads as follows:
"... Although he may have been laboring at the time of the alleged homicide under partial insanity, as, for instance, suffering from some insane delusion and hallucination, or some loss of memory, or if at that time he was actuated and impelled by some passion, some hatred, some anger, some revenge which caused him to commit the alleged homicide, or if he simply lacked normal development of his moral sensibilities so he had slight regard for human life -- as I say, even though he was suffering from, or influenced by, or impelled by any and all of those things, or things of a similar nature [60 Ariz. 96] in the commission of the alleged homicide, still, being so impelled and influenced, if he understood at the time of the commission of the alleged homicide, or the other acts alleged -- if you believe beyond a reasonable doubt that the defendant committed those acts -- still, if he understood and appreciated the nature and character of his action and its consequences; and if he had knowledge that his acts were wrong and criminal, and in violation of law, and that they might subject him to punishment; and if he knew that if he did the acts he would do wrong, then and in that event he is responsible for his acts, and such partial insanity, such passion, such hatred, such revenge, such moral insensibility, or the like, if he was actuated by any such, would not be sufficient to relieve him from the responsibility of his criminal act."
The question as to the nature of the insanity which will excuse a man from responsibility to the criminal law for the consequence of his act has been before the courts many times, and there is considerable conflict of opinion upon the subject. This difference is probably due to the failure on the part of certain courts to differentiate between "insanity" as a legal term in criminal law, and "insanity" as a medical term. So far as the latter is concerned, the situation is "confusion worse confounded." Medical experts discuss congenital, delusional, emotional, moral and recurrent insanity, with the various subdivisions of dementia praecox and senile dementia, hallucinations, illusions, irresistible impulse, and a hundred others until one is almost tempted to say with the Quaker, "All the world is queer except thee and me, Betsey, and sometimes thee's a little queer." The theories of free will and determinism, with the various deductions which may be made therefrom are subjects of discussion for philosophers, but the courts in applying principles of law must necessarily have some definite standard of comparison which is practical and workable in its nature. Whatever we may say as to the theoretical question, every man regulates [60 Ariz. 97] his entire life on
the presumption that he has free will to act, and the law must necessarily assume and act upon the presumption that every man with knowledge of the facts has the power to decide between different possible courses of action. In determining whether one accused of crime is relieved of the consequences thereof by mental aberration, the vast majority of the courts have very sensibly acted upon this theory and have enunciated a test, clear and simple in principle, which affords a definite yardstick to apply to the frequently voluminous, confused and contradictory testimony which is presented to the triers of fact. The leading case upon this subject, and the one which is cited in practically every well reasoned opinion determining the test of insanity, is M'Naghten's Case, 8 Eng. Reprint, 718, which uses the following language:
"... that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused at the time of doing the act knew the difference between right and wrong: which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put generally and in the abstract, as when put with reference to the party's knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused solely and exclusively with reference to the law of the land it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction; whereas the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does not know it. If the accused was conscious that the act was one which he ought not to do, and if that act [60 Ariz. 98] was at the same time contrary to the law of the ...