[88 Ariz. 390] Nebeker & Nebeker, Yuma, for appellant.
Wade Church, Atty. Gen., Bill Helm, Yuma, for appellee.
This appeal is from a judgment and sentence entered upon a jury verdict finding the defendant guilty of kidnapping, grand theft and aggravated battery.
The defendant was without means to employ an attorney. At his arraignment, the court appointed to represent the defendant his present counsel, who have conscientiously and ably served him through the trial and this appeal. Among his pleas to the charge was the plea of not guilty by reason of insanity. Prior to his trial defendant moved the court for an order appointing two qualified psychiatrists to examine him and aid him in the presentation of his defense of insanity. That motion was not made under Rule 250 of the Rules of Criminal Procedure, 17 A.R.S., but was specifically for the purpose of enabling defendant to prepare and present at the trial evidence relating to the question whether he was, under our law, criminally responsible for his acts. The motion was denied.
At the trial, evidence was adduced from expert witnesses to support the conclusions that (1) the defendant was a psychopath, or sociopath, (2) the condition of being a psychopath or sociopath, (they are the same thing) is a mental illness or disease, and (3) [88 Ariz. 391]
the acts with which defendant was charged were products of that condition. The experts also testified that the defendant at all important times knew right from wrong.
At the conclusion of the evidence, the court instructed the jury on the issue of insanity in the manner and form long approved by this Court, and, in general following the so-called M'Naghten Rule. In testing the defendant's sanity the jury was instructed to consider merely whether he was able to distinguish right from wrong at the time of the alleged offense. This is the test which has been considered and approved by this Court in many cases. See, for example, State v. Coey, 82 Ariz. 133, 309 P.2d 260. The defendant offered, among others, the following instructions on the issue of his sanity, all of which were refused:
'You are instructed that though the accused may have been capable of appreciating the moral character of his act and may have been able to chose the right to avoid the wrong, yet he should be absolved from punishment for his act if knowing it was wrong he was prompted to do it by some uncontrollable or irresistible influence or was under some insane delusion that made him chose the wrong in preference to the right.
'Assuming defendant's knowledge of the nature and quality of his act, his knowledge that the act was wrong, if, by reason of disease of the mind, defendant had been deprived 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.
'Here it is contended that although the defendant may have understood what he was doing when he kidnapped Officer Penny, and may have known it was wrong, yet he was impelled by an irresistible impulse to do the acts for which he is on trial.
'If the defendant was suffering from a diseased condition of his mental facilities, which so far destroyed his will, the governing power of the mind, that his actions were not subject to the will, but beyond his control, then in legal contemplation, he was insane and not responsible though he may have understood the nature of those acts, and have been conscious of their wrong.
'The term insanity as used in this defense means such a perverted and deranged condition of the mental and moral facilities as to render a person incapable of distinguishing between right and wrong, and unconscious at the time, of the nature and quality of the act he is committing, or where, though conscious of it, and able to distinguish between right and wrong, yet his will--by which I mean the governing power of his mind--has been otherwise and involuntarily[88 Ariz. 392] so completely destroyed that his actions are not subject to it but are beyond his control.
'If you should find that at the time of the commission of the acts charged the defendant, Jimmy Crose, was suffering from a diseased or defective mental condition and the acts were the product of such abnormality, Jimmy Crose must be found not guilty by reason of insanity.'
The defendant makes two basic arguments on appeal: First, that it was prejudicial error to deny his motion to have psychiatric experts appointed to assist in his defense; and second, that the jury ...