State v. Behler

I concur in the conclusion reached in the majority opinion with the exception of that portion reducing the sentence imposed upon appellant from death to life imprisonment.

The homicide committed by appellant was, as charged in the information, i.e., substantially, that appellant wilfully, deliberately, premeditatedly killed the deceased John P. Gilbertz, at the time, in the manner and by the means alleged in the information; that the homicide so committed was murder in the first degree. The jury, by virtue of sec. 17-1104, I.C.A., fixed the penalty at death. To avoid the infliction of the penalty and to clear himself of the crime so committed, appellant interposed the defense of insanity. Prior to his trial, a jury was impanelled composed of 12 jurors duly selected to determine the sanity or insanity of appellant at the time of the trial, and found unanimously by their verdict that appellant was sane. When placed upon his trial, appellant again interposed the defense of insanity. The question of his sanity or insanity was again submitted to 12 jurors selected from the body of the county where the crime was committed and after hearing the testimony pro and con as to appellant's sanity or insanity, found by its unanimous verdict that appellant was sane when he committed the murder and at the time of the trial. 24 jurors having found appellant sane is sufficient to satisfy my mind that the verdict of the jury should be upheld and the judgment enforced. The task of the appellate court is complete when it has determined whether or not appellant had a trial in conformity with the forms of law and when that question is determined the authority of the appellate court ceases. The question of appellant's sanity or insanity was a question of fact and the evidence overwhelmingly supports the jury's verdict.

Conceding, but not deciding, that appellant was of low mentality that is no defense that would justify the reduction of the penalty where it was established beyond controversy that he knew the difference between right and wrong. In the interest of brevity, attention is called to the following cases:

"In view of the youth of the defendant, his lack of mental development, and his almost uniformly good conduct before the crime was committed, we should have been better satisfied had the jury designated imprisonment in the penitentiary for life as his punishment; but, in a legal sense, the evidence was sufficient to authorize the punishment designated, and there is no sufficient ground upon which we can prevent it. We find no error in the record prejudicial to defendant, and the judgment of the district court is affirmed." (State v. Dooley, 89 Iowa 584,57 N.W. 414, 417.

"There is not room for the slightest doubt concerning the mental competency of the defendant. It was not until after he had committed this dreadful crime that anyone thought to question his mentality. * * * * He knew perfectly well what he was doing at the time of the crime, the details of which he had carefully arranged, and he understood the nature and consequences of his act. * * * He deliberately committed murder with the intent to perpetrate a robbery. It was not an abuse of discretion to impose the death penalty." (Commonwealth v.Hipple, 333 Pa. 33, 3 A.2d 353.

"* * * * where evidence showed that defendant was able todistinguish between right and wrong but was suffering from highgrade feeble-mindedness, question for Supreme Court'sconsideration was not whether Supreme Court would have imposeddeath penalty, but whether discretion vested in trial court wasjudicially exercised and whether record showed a case in theclass justifying sentence of death or in the class justifyingsentence of life imprisonment." (Syllabus; (Italics ours.) (Commonwealth v. Howell, 338 Pa. 577, 13 A.2d 521.)

In Commonwealth v. Hawk, 328 Pa. 417, 196 A. 5, a case in many respects similar to the case at bar the following language is found:

"* * based on its conclusion that defendant's aberration from normal was slight, the court below refused to impose less than the extreme penalty which the crime itself made appropriate.

"This record shows that defendant knew exactly what he was doing, before, during, and after the crime; that he understood the nature and consequences of his act; that he wilfully and deliberately murdered two, and attempted to destroy three unsuspecting women; that with much cunning during the perpetration of the crime, and afterward, he attempted to hide his guilt. The facts show conclusively that even though emotionally defective the variation was so negligible that he was as responsible for his acts as a normal person. * * * The discretion vested * * * in the sentencing judge was wisely and judicially exercised."

Cases may be found that upon their face appear to be in conflict with the above cases, but a close study of the facts in each particular case discloses that they are in harmony on two basic principles: (1) Evidence of mental derangement although not amounting to legal insanity is admissible for purpose of mitigation of sentence. (2) Even though accused is afflicted with a mental derangement such as low mentality unless the jury abused the discretion vested in it, (to either impose life imprisonment or the death penalty) its verdict should not be disturbed by a reviewing court. In State v.Ramirez, 34 Idaho 623, 638, 203 P. 279, this court said: "it is clear to our minds that the jury abused its discretion" in assessing the extreme penalty of death, and the judgment was therefore modified to life imprisonment at hard labor.

There are no mitigating circumstances disclosed by the record. The sole ground for reducing the penalty is predicated upon the theory that appellant is of low mentality. Applying the two principles above set out, evidence of appellant's low mentality was properly admitted; but I am unable to say that the discretion of the jury was not judicially exercised, or that the jury abused its discretion in imposing the death penalty rather than life imprisonment. All the elements of first degree murder are present and there is substantial evidence to support the sentence of death.

The judgment should be affirmed.

Givens, J., concurs.