I concur in the opinions of Justice Wennerstrum and Justice Hays. I do not believe appellant's mental condition as to sanity or insanity at the time he pleaded guilty and was sentenced is presented by this appeal. But some of the members of the court feel we should examine the record to see if the trial court abused his discretion in not finding there was a reasonable doubt as to the defendant's sanity at the time of the hearing which resulted in the death sentence. Defendant's counsel raised no such issue in the trial court and does not here argue that defendant was insane at the time of sentence or that the trial court abused his discretion by not finding there was reasonable ground for believing the defendant insane at the time of the sentence. Since it was not urged in the trial court that he was then insane, the trial court had to judge from all the testimony, the actions and behavior of defendant when he was before him, the report of the doctors who examined defendant shortly before his plea and sentence, and the past history of defendant's insanity and institutional care.
The term "insanity" is a generic term, embracing all kinds and conditions of mental derangement. Beattie v. Bower, 290 Mich. 517,287 N.W. 900. Thus the law applies certain tests to determine the quantum of mental competency necessary to legally contract, to make a will and to deed property and to do many other things. The tests of insanity of a defendant at the time of trial is thus stated in 44 C.J.S., Insane Persons, section 127:
"The test of insanity of an accused precluding his being put on trial for a criminal offense is usually stated to be his capacity to understand the nature and object of the proceedings against him and to conduct his defense in a rational manner; and, if he passes this test, he may be tried, although on some other subjects his mind may be deranged or unsound." *Page 353
The statutes (sections 789.7 and 789.8, Code, 1946) seem to contemplate a showing by defendant of insanity as a legal cause against the pronouncement of judgment. The defendant produced no witness who said he was then insane. His counsel did not apparently suggest to the court that he might be then insane as did counsel in State v. Machovec, 236 Iowa 377, 17 N.W.2d 843. There was no suggestion in the testimony of any of the witnesses that he was insane. There certainly was nothing in defendant's testimony that would lead one to believe he did not know or comprehend that he was being prosecuted for the deliberate murder of Percy Smith. There was nothing in his actions to suggest that he was so mentally deranged as to be unable to present adequately any defense that he had. True he said he had not been "mentally well" for the last three or four months but he gave no indication that he was then so mentally sick that he did not know the nature of the proceedings or was not able to present his defense. He related his past history of the adjudication of insanity and institutional care with rather good memory and the hospital records support his testimony showing his discharge from Clarinda on parole as not cured in 1935.
About the only basis for even suspecting that he was so mentally deranged as not to know the nature and object of the proceedings against him or as not to be able to conduct his defense are the records of adjudication of insanity, his confinement in hospitals for the insane, and his discharge some twelve or thirteen years before the hearing, on parole as not cured. If the trial court had any suspicions that any serious mental derangement still existed, they were set at rest by the two psychiatrists who reported that there was no evidence of any present or recent psychosis.
I do not believe we should hold there is a presumption of insanity such as to preclude the sentencing for crime, merely from the record of prior adjudication of insanity and subsequent dismissal from an institution on parole with the notation "not cured."
Again I emphasize that this has nothing to do with insanity as a defense or insanity at the time of the commission *Page 354 of the crime. The plea of guilt establishes defendant's sanity at that time as effectively as if he pleaded not guilty, raised the defense of insanity at the time of the alleged criminal act, and was found guilty. We are only concerned with the mental condition of defendant at the time he appeared for sentence. And here the law has said the test of "insanity" is restricted to his capacity to understand the proceedings and conduct his defense.
Presumptions in the law of evidence have to do with burden of proof and the establishment of a prima facie case. It is true there is in many cases, where the issue is the insanity of a party, a presumption of continuing insanity arising from a prior adjudication of insanity, which aids him who asserts insanity and has the burden of proving its present existence. But the issue to be determined by the court under this statute is not defendant's sanity or insanity. When the showing of the defendant is made as a legal cause against the pronouncement of judgment, the trial court merely determines from the showing made whether there is a reasonable ground for believing the man before him is so mentally deranged as not to appreciate exactly the nature of the criminal charge against him and his relations to the proceedings, and not to enable him to make his defense. The evidence of prior adjudication of insanity is a part of the showing made. It is no more than that. It may or may not give rise to a presumption of insanity in a future hearing on that issue if one is ordered. But the prior adjudication is not such a presumption that compels a holding that reasonable grounds exist for believing defendant insane.
As said in State v. Noel, 102 N.J. Law 659, 671, 133 A. 274, 279:
"The fact that a person has been adjudicated a lunatic does not mean that he is exempt from prosecution for the commission of a crime. Insane persons may be adjudicated insane and be committed for the protection of the public against violence, or for the care and cure of the person committed, or for the conservation and management of the lunatic's property. A regular inquisition is not conclusive. In cases of confinement, where the confinement is made for the protection of the public *Page 355 or for the care of the individual, the commitment is evidential of nothing more than a condition justifying the confinement. A commitment adjudges no more than that it is necessary to confine the patient for the good of the public or himself, or both. The fact that a person has been committed as insane has no necessary relation to the question whether such a person can intelligently go to trial for a crime. Persons having some forms of insanity are as responsible for crimes committed by them as normal persons. It was not error to put the defendant to a trial merely because he had been committed to a hospital for the insane."
See also In re Buchanan, 129 Cal. 330, 61 P. 1120, 50 L.R.A. 378, and People v. Cowan, 38 Cal. App. 2d 144, 100 P.2d 1079.
The trial court made no specific finding that the showing was insufficient to establish reasonable ground for believing him insane at the time of sentence. As stated this was not argued. Of course the subsequent sentencing of defendant shows that in the court's opinion there was no reasonable ground for believing him so mentally deranged as not to understand the proceedings or so mentally deranged as not to be able to present adequately any defense that he might have had. I think his opinion is well supported by the record and it should not be reversed.
Most of appellant's brief is devoted to an argument that the death sentence should be reduced by this court to life imprisonment. No case is cited where that was ever done by this court but we have often held that in a proper case we will reduce the punishment if it is too severe. This power to reduce the sentence "will be exercised only when the court below has manifestly visited too severe a penalty, one disproportionate to the degree of guilt, as shown by the proof." State v. Olander,193 Iowa 1379, 1382, 186 N.W. 53, 55, 29 A.L.R. 306.
The legislature, and not this court, declares the public policy of this state. The legislature has provided penalties of life imprisonment or death as punishment for the deliberate slaying and the duty of fixing the penalty is cast upon the district court when the defendant pleads guilty. The penalty *Page 356 thus fixed in this case in the district court was warranted by the record. Our jurisdiction is appellate only. The views of the members of this court on the age-old issue of capital punishment are not important. We are limited both by law and conscience to the judicial function of faithfully interpreting and applying the law as we find it. With nothing in the record that would justify this court in interfering with the sentence, our reduction to life imprisonment would be commutation, a function reserved to the executive power. I concur in the affirmance of the case.
MANTZ, C.J., and HALE, WENNERSTRUM, SMITH, and HAYS, JJ., join in this special concurrence.