State v. Wallace

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The defendant, William E. Wallace, was convicted of murder in the first degree. From the ensuing judgment and sentence of death he appeals.

AFFIRMED. REHEARING DENIED. On the 8th day of August, 1941, defendant fatally shot Benjamin H. Finkell. To the charge of murder in the first degree the defendant entered a plea of not guilty.

The Oregon statute provides:

"All matters of fact tending to establish a defense to the charge in the indictment or information, other than those specified in the third subdivision of section 26-841, and except as herein provided, may be given in evidence under the plea of not guilty; provided, however, that where the defendant pleads not guilty and purposes to show in evidence that he was insane or mentally defective at the time of the alleged commission of the act charged, he shall, at the time he pleads, file a written notice of his purpose; and provided further, that the defendant may file such notice at any time thereafter but before trial when just cause for failure to file the same at the time of making his plea shall be made to appear to the satisfaction of the court. If the defendant fails to file any such notice he shall not be entitled to introduce evidence for the establishment of such insanity or mental defect; provided, however, that the court may, in its discretion, permit such evidence to be introduced where just cause for failure to file the notice has been made to appear." O.C.L.A. 26-846.

The provision concerning notice of insanity was added in the year 1937 and has, until now, received no construction by this court.

The defendant did not, at any time before trial, file or seek permission to file any notice of purpose to show in evidence that he was insane or mentally defective at the time of the alleged commission of the act charged.

Upon this appeal, the defendant presents two assignments of error. The first is as follows:

"Upon the opening statement to the jury by James R. Bain, District Attorney, it appeared affirmatively and conclusively that the defendant was insane at the time of the commission of the alleged crime. That upon conclusion of the District Attorney's opening statement, counsel for the defendant moved the court to allow the defendant to add to his plea of Not Guilty, a plea of insanity as an excuse for his acts, which motion was over ruled by the Court and an exception taken to the Court's ruling and duly allowed by the Court. That the Court erred in over ruling the defendant's motion and the Court's act constituted an abuse of the Court's discretion."

The second assignment of error is as follows:

"That during the trial of the State's case, numerous State's witnesses testified to acts and appearances of the defendant that showed clearly that the defendant was insane at the time of the alleged commission of the offense with which he was charged and after the testimony was adduced from the witnesses many motions were made to the trial Court upon behalf of the defendant to allow the defendant to offer as a defense and excuse for his act, the plea of insanity, which motions were denied by the Court and the Court's denial constituted an abuse of the Court's discretion."

The only substantial difference between the two assignments is that one relates to matters disclosed by the district attorney in his opening statement, and the other to the same matters disclosed by the state's witnesses.

At the close of the trial, the defendant requested a brief instruction on insanity as a defense, which was denied by the court and an exception allowed. In view of the gravity of the case, we have considered the propriety of this ruling, although no error based upon it has been assigned in the brief.

In his opening statement concerning the conduct of the defendant on the day of the shooting, the District Attorney said:

"Wallace, the defendant, went into the Olympian, and he met Mr. Scheurer — Mr. Scheurer the pan dealer, and he says, `I am going to get me some white meat, I don't care a damn who it is, but I am going to get some.' And when Scheurer finished the deal he says, `Where is your friend?' And Scheurer says, `They are all my friends.' And Wallace said, `I mean your friend Buster Keating.' And he pressed the gun so hard against Scheurer that it left an impression on his body where he pressed the gun against him."

At the conclusion of the opening statement by the District Attorney, counsel for the defendant interposed the following motion:

"Mr. Elliott: If the court please, there has been no surprise to the defense at all as to the statement made by the District Attorney, except in one or two particulars, and in view of the statement made by Mr. Bain, and the intention of the State to prove the things they intend to prove, counsel and myself feel that it is necessary to ask the Court, as provided by the Code, to introduce the plea of insanity for the defendant. The District Attorney may now object because of the failure to serve the District Attorney with notice at the time of pleading to the indictment. From the statements made by the District Attorney some of the statements made by the District Attorney, can be explained only by the defendant through evidence offered as insanity. We ask the Court to exercise its discretion at this time and permit us to introduce testimony of that nature."

The District Attorney opposed the motion, and the court and counsel retired to the court's chambers, where the following conversation was had:

"The Court: Did you have something to say Mr. Elliott before I conclude?

"Mr. Elliott: Yes. The only opportunity we wish in the trial is not to be curbed in any way on the introduction of evidence that we have now to controvert evidence that the District Attorney has to offer. Some of the evidence that the District Attorney apparently anticipates can be controverted only by testimony that we intend to introduce through our witnesses and on cross-examination of the State's witnesses to the effect that this defendant a short time prior to the incident, and a short time subsequent to the incident must have been insane — to prove his insanity. We can't explain these actions any other way. A sane man can't perform those actions, if the District Attorney is able to prove them."

"Mr. Lomax: This is the first I heard of him saying that he was going to shoot all his friends.

"Mr. Bain: That is what he said, `I am going to shoot all my friends.'

"Mr. Lomax: And `I am going to get some white meat' that is the first time I ever heard of that."

The fact is that the District Attorney never stated to the jury that the defendant had said, "I am going to shoot all of my friends," nor did any witness testify to the making of any such statement by the defendant. The only statement to that effect was made in the judge's chambers, and the District Attorney later in the same place corrected his statement and eliminated his assertion that the defendant had said he would kill all of his friends.

At the close of the conference in the judge's chambers, the court denied the defendant's motion. At the conclusion of the state's case in chief, counsel for the defendant addressed the court thus:

"Mr. Lomax: I am renewing the motion to allow us to include as a defense for the defendant the plea of Not Guilty by reason of the temporary insanity of the defendant."

This motion was also denied.

We then turn to the evidence presented by the state and which the defendant now claims established his insanity at the time of the killing. Witness Scheurer testified:

"Q At the time he came in and put that gun on you and looked at him was you sure that he was in a normal state or was there something wrong with him?

"A There must have been something wrong with him, he looked mean and he went purple around the mouth and then he went white.

"Q He went purple and then he went white around the mouth?

"A Yes.

"Q Was he trembling?

"A No, I didn't notice he was.

"Q Did his voice sound sane at that time like it always sounded before?

"A Well, I really couldn't say.

"Q But his appearance was altered considerably, is that right?

"A Yes."

James Winslow testified:

"Q How did his (Wallace's) face appear?

"A Oh, his eyes were kind of blood shot and glassy, and he was kind of fighting those fellows off that was holding him."

James Wood testified:

"Q Was his (Wallace's) face drawn?

"A Yes, rather drawn, and you might say almost contorted with anger."

Officer Mitola testified:

"A When I walked into the room where he was seated, Detective Brian was with him. As soon as I walked into the room he seemed very angry, and he used profanity toward me, and I couldn't understand why, because I had not talked to him prior to that time, and then for a few moments later on we did not bother talking to him — until he had a chance to cool off a little bit, and finally when he had straightened out to a certain extent we started questioning him about this incident, and his story — he was going to tell us the whole thing, and he related a story about an incident that occurred several years ago, several years back, in which his brother was involved in a fight in a card room, and a party by the name of Blondie Keating was one of the men involved in this incident, and there were two other fellows which resulted in the defendant's brother's death. That is the story he told us at the time; and the night previous to the shooting he had been in a card room at Kelly's Olympian on Washington Street, between Fifth and Sixth Streets, and he had been in a card game, and one of these Keatings — and we found later he meant Buster Keating — was in the card game; and so he told us he became involved in an argument with Keating, and Keating became quite abusive, and so he left the card room. And the next day he got to thinking about this argument, and also about the incident that occurred several years back, and he got to drinking, and the more he thought about it the madder he got, and the more he drank. And he thought he would go out and look for Keating. And before doing this he went up to his room and had some drinks there, and he had a gun in his room, which we found out was a .38 super-automatic. He took this gun to the basement of the hotel in which he was staying and practiced with that two or three times, and the gun jammed on him, so he took it to Semler's Pawn Shop on Southwest Third and Washington Streets and traded the gun for the gun we have here, and he then went back to the hotel and used that again in the basement to see if it worked, and after doing this he put the gun in his pocket, and stated he walked up the street, and was looking for one of the Keatings. And during the afternoon of this particular day he stated he had been drinking and going into doorways, and had been in the Basket Grocery and purchased a bottle of wine, and had that and he had a few glasses of beer, and walking down the street in front of the Knotty Pine, he stated the deceased, Finkell, jumped out of the car, although he didn't know it was Finkell at the time, and he just shot."

The foregoing testimony related to conversations had at the police station on the day of the killing. The same witness testified that the defendant's face was more or less flushed, that he thought defendant's statements were "pretty logical", but that he was "more or less irrational." There was also testimony that on the day of the killing, the defendant claimed that some time previously, one Keating had attacked the defendant's brother, resulting in the brother's death, and that Keating had placed defendant's sister in a house of prostitution. At the trial, defendant testified that he had never had any trouble with Keating, that he had never heard of his brother having any such trouble and that none of his sisters was ever in a house of ill fame.

Shortly before and after the killing, the defendant used profane and obscene language. Concerning the evidence immediately preceding the killing, witness Scheurer testified:

"Mr. Lomax: Was that the first time?

"The witness: No, the second time. He came in and he come up to me and he says, `Where is your friend?' and I says, `What do you mean?' I call him Curley.

"Q Who do you call Curley?

"A Mr. Wallace. And he says, `Where is your friend?' And I says, `Who do you mean?' And he says, `You know who I mean.' And he says, `Your friend.' And I says, `Well, Curley, there are lots of them, everybody who comes in this place is my friend.' And he says, `Well, your friend Buster.' And I says, `I don't know.' And he started to call me vile names.

"Q Tell the jury what he said and what he did. I know it is unpleasant, go ahead and tell the jury what he said.

"A Well he called me a ____ do I have to use that —?

"Q You will have to tell the jury what it is.

"A Well he called me a dirty * * * * * and a son-of-a-bitch. And about that time he pulled a gun out and shoved it in my chest.

"Q What did he say when he did that?

"A Well, if I remember right he said, `I would just as leave get you as my meat as not.'

"Q Then what?

"A Then after he put the gun in my chest, — I don't know whether he meant to pull the trigger or not, but I know it scared me at the time; and then he shoved the gun back in his pocket and started to walk out, and then he turned around and called me a dirty * * * * * again and walked out."

Detective McCormick testified:

"Q And he (Wallace) said the police protected the pimps?

"A Yes, he said the police protected the pimps.

"Q And was there any continuity to what he said or was it all a mix up.

"A It was all a mix up.

"Q Could you get any sense out of it.

"A Very little.

"Q Was he drunk?

"A I would say so.

"Q When you talked to Mr. Bain did you tell him that.

"A I did."

It should be added that there was ample evidence that the defendant was very drunk on the day of the killing. To this evidence we shall later refer.

It is the contention of the defendant that the trial court abused its discretion in refusing to permit the defendant after the commencement of the trial to add to his plea of not guilty the plea of insanity as a defense and excuse for his act. This special plea of not guilty by reason of insanity is unknown to our law, and defendant's motions were ineptly phrased, but we shall assume, for the purposes of this decision that the defendant meant to and did move the court for leave to introduce evidence of insanity under the provisions of the last clause of O.C.L.A. 26-846 (supra).

It is contended in support of defendant's appeal that the state introduced evidence of defendant's insanity and that therefore the insanity defense should have been submitted to the jury, notwithstanding the provisions of the statute. It is contended further that the defendant was entitled to introduce evidence of insanity notwithstanding the provision of the statute, and it has been urged that even if the defendant was not entitled to introduce evidence of insanity as a defense, nevertheless he was entitled to introduce such evidence for the purpose of showing an absence of deliberation, premeditation and specific intent, and for the further purpose of aiding the jury in determining the punishment, whether death or life imprisonment. No affidavit or testimony was ever made or given for the purpose of showing just cause for the failure to file the required notice. If any just cause can be found for such failure it must repose only in the unsworn statements of counsel for the defense concerning their ignorance of certain words and conduct of the defendant on the day of the killing, as disclosed by the District Attorney's opening statement, and by the testimony of the witnesses for the state.

A consideration of the statute, O.C.L.A. 26-846 (supra), discloses that it is a limitation only upon the defendant.

"* * * Where the defendant * * * purposes to show * * * that he was insane * * * he shall * * * file a written notice of his purpose * * *. If the defendant fails to file any such notice, he shall not be entitled to introduce evidence * * *."

The statute has no direct bearing on a case in which the state introduces evidence sufficient to go to the jury on the issue of insanity and to require an instruction thereon. Our first question, then, is whether in this case, irrespective of the O.C.L.A. 26-846, the state introduced sufficient evidence to require an instruction by the court on insanity as a defense and a submission of that question to the jury on proper forms of verdict. If there was such evidence, then the judgment of conviction must be reversed. If there was not, then we must inquire whether the court abused its discretion in refusing to permit the defendant to introduce "evidence for the establishment of such insanity or mental defect."

Upon the first question, the statement of the District Attorney, much of which was not in the presence of the jury, was not evidence, and if unsupported by evidence, it would certainly not require the submission of the insanity defense to the jury.

We come to the testimony. At the threshold of inquiry, one concession must be made, which on superficial consideration would tend to support the defendant's contention. When the insanity issue is properly before the court, any and all conduct of the defendant and the relevant circumstances surrounding such conduct are admissible on the issue of insanity, and the only exclusionary rule must be based upon the power of the court in its discretion to exclude remote evidence in order to confine the trial within reasonable limits.

"The mode of operation of the mind is ascertainable from the conduct of the person in question, i.e. from the effect produced by his surroundings on his mind when responding by action to those surroundings. Virtually, then, the mind is one, while the surroundings are multifold; and the mode of operation cannot be ascertained to be normal or abnormal except by watching the effects through a multifold series of causes. On the one hand, no single act can be of itself decisive; while on the other hand, any act whatever may be significant to some extent.

"The first and fundamental rule, then, will be that any and all conduct of the person is admissible in evidence. There is no restriction as to the kind of conduct. There can be none; for if a specific act does not indicate insanity it may indicate sanity. It will certainly throw light one way or the other upon the issue. `Upon this I believe that no difference of opinion will be found to exist,' said Mr. Justice Patteson, in a celebrated case, `as to the principle on which such evidence is admissible: Every act of the party's life is relevant to the issue.' There can be no escape from this consequence. There is no distinction in kind (whatever there may be in degree) between one or another piece of conduct as evidence to be considered; some inference is always possible." Wigmore on Evidence, Vol. I. p. 9, § 288.

State v. Driggers, 84 S.C. 526, 66 S.E. 1042, 137 Am. St. Rep. 855, 19 Ann. Cas. 1166 (1909); State v. Flanney, 61 Wash. 482,112 P. 630 (1911); State v. Peare, 113 Or. 441, to pages 447 and 448, 233 P. 256 (1915); Weihofen, Insanity as a Defense in Criminal Law, page 238, and many cases cited.

In the case at bar, we concede that the state's case did contain evidence concerning specific acts of the defendant which would be admissible in support of an insanity defense. This presents a fundamental question: Is it the duty of the court to submit the issue of insanity as a defense whenever specific instances of strange, irrational or depraved conduct are made to appear in the state's evidence? The answer is "no." If it were otherwise, it would be necessary to instruct on the insanity defense and submit that issue by special form of verdict in substantially every murder case and innumerable other cases, for which there is no justification in theory, practice or precedent. Under the rule of multiple admissibility, I Wigmore, 3rd Ed. § 13, it seems clear that evidence which is clearly admissible for one purpose should not necessarily, when offered for that purpose, be deemed to raise all other issues which might be supported by such evidence. Upon a murder charge the state may have the burden of proof of premeditation, deliberation, malice and intent to kill. Evidence on any of those issues may disclose that the defendant employed profane and indecent language, unreasonable and unjustified jealousy, passion, frenzy or blood-lust. In proof of the act of killing, contemporaneous statements and conduct of the defendant would be admissible. Such conduct may disclose brutality, depravity or revenge on the part of the defendant. Statements of the defendant after the crime may be, and frequently are, inconsistent with the facts and with each other. They frequently manifest real or simulated failure of memory. Evidence of other strange and illogical acts may be relevant to show consciousness of guilt, and in multitudes of cases admissible evidence may show that the defendant was intoxicated and manifested one or more symptoms which are characteristic both of insanity and intoxication. If any evidence of any of the types above referred to, when offered by the state, should be held to require the submission of the insanity defense, the result would be disastrous in the practical administration of criminal law.

The question as to when the insanity defense should be submitted to the jury must be considered in the light of the law of the particular jurisdiction concerning that defense. Approximately one-half of the states of the union have adopted the rule that the burden of proof is on the state to prove the defendant sufficiently sane to be held responsible. Weihofen (supra), pages 150 and 172. In such jurisdictions, the state can rely only on the presumption of sanity as perhaps relieving it of the affirmative duty of introducing evidence of sanity in the first instance. In such states, it might be suggested that any substantial evidence of irrational conduct would be sufficient to sweep aside the tenuous presumption of sanity and impose upon the court the burden of instructing on that issue. 22 C.J.S. page 889, § 576. Decisions from states where such rules prevail are of little or no aid in this jurisdiction, for Oregon is one of twenty-two states which have adopted the rule that the burden of proof of insanity as a defense is upon the defendant, under which insanity becomes an affirmative defense. Weihofen (supra), p. 148. Not only is the burden of proof of insanity upon the defendant, but Oregon is the only state in the Union in which that affirmative defense must be proved by the defendant beyond reasonable doubt. State v. Hansen, 25 Or. 391, 35 P. 976, 36 P. 296; State v. Riley, 147 Or. 89, 30 P.2d 1041. It is not for this court to nullify that rule, as it is established by valid legislative enactment. (O.C.L.A. 26-929.)

Nor can we constitute ourselves a psychiatric board to explore the hidden mysteries of the mind. Difficult as it is, the task of the courts is a simpler one than that of the alienist. The conflict between psychiatry and law has been too long a battle of words, the former giving to "insanity" a broad and profoundly penetrating meaning as a result of techniques unknown and largely unknowable to the law; the latter giving the same word a very much narrower meaning. It is time for a realistic approach. Since mental capacity when put in issue must for constitutional reasons be decided by a lay jury under the guidance of a judge, learned in the law but not presumed to be learned in psychiatry, the court cannot explore the whole field of the diseased mind, but rather limits itself to the difficult application of the rules for the determination of "responsibility." To that end, it has adopted crude definitions of so-called legal insanity, which in fact merely define "responsibility" before the law.

The Oregon court, by Mr. Justice McBRIDE, quotes with approval from State v. Knight, 95 Me. 467, 50 A. 276, 55 L.R.A. 373, the following:

"Although not a test of insanity, the knowledge of right and wrong is a test of responsibility. * * * Any individual having the capacity to know that an act which he contemplates is contrary to law should be deemed legally responsible, and should suffer punishment. He possesses what is called by Bain punishability." State v. Hassing, 60 Or. 81, 118 P. 195 (1911); 22 C.J.S. 121 § 58.

The test for determining legal responsibility (or punishability) is variously stated, but in substance it is as follows: If, at the time of committing an act, the party was laboring 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 the nature and quality thereof, that he did not know that he was doing what was wrong, he should not be held responsible under the criminal law. M'Naghten's Case, 10 Clark Fin. 200 (1843); State v. Murray, 11 Or. 413, 5 P. 55;State v. Zorn, 22 Or. 591, 30 P. 317 (1892); State v. Lauth,46 Or. 342, 80 P. 660, 114 Am. St. Rep. 873 (1905); State v.Brumfield, 104 Or. 506, 209 P. 120 (1922); State v. Butchek,121 Or. 141, 253 P. 367, 254 P. 805 (1927); State v. Riley (supra); State v. Banks, 147 Or. 157, 32 P.2d 571 (1934). In a word, the state is committed to the "right and wrong test."

The law has gone further in imposing specific limitations to the field of irresponsible insanity.

"While the law will not punish a man for an act which is the result of, or produced by, mental weakness, it will punish him for an unlawful act, not the result of, or produced or influenced, by mental disease, even though some mental unsoundness is shown to have existed." State v. Branton, 33 Or. 533, at p. 549, 56 P. 267 (1899).

"If the jury in this case had found that the appellant, at the time he shot Jenke, was not of sound mind; that he was laboring under a delusion; that it was the efficient cause of his doing the act; and that he would not have done it but for the delusion, it would not necessarily have followed that he should have been acquitted. He still may have been conscious that he was doing a criminal act that would subject him to punishment. If he knew enough to know that he was violating the law by the commission of the act, it will not excuse him, although he had surrendered his judgment to some mad passion which for the time being was exercising a strong influence over his conduct." State v. Murray (supra).

"A frenzy arising from jealousy, in a mind unimpaired by disease and not unbalanced by heredity, is not insanity, within the meaning of the Code: State v. Lauth, 46 Or. 342 (80 P. 660, 114 Am. St. Rep. 873)." State v. Butchek, (supra).

The irresistible impulse doctrine has been definitely rejected, and that type of mental derangement does not relieve the actor from responsibility. State v. Hassing, 60 Or. 81,118 P. 195 (1911); State v. Grayson, 126 Or. 560 at p. 575,270 P. 404 (1928); State v. Riley, (supra). The rejection of the irresistible impulse doctrine and the adoption of the right and wrong test is supported not only by judicial decision, but also by legislative enactment.

"Morbid propensity to commit prohibited acts, existing in the mind of a person, who is not shown to have been incapable of knowing the wrongfulness of such acts, forms no defense to a prosecution therefor." O.C.L.A. 23-122.

The most pertinent limitation to the scope of the field within which the defendant is held irresponsible by reason of mental disease relates to intoxication. Mental incapacity produced by voluntary immediate intoxication and existing only temporarily at the time of the commission of the criminal act, is no defense, and this is true even though such intoxication produces mental derangement. 22 C.J.S. 135, § 70; People v.DeMoss, 4 Cal. 2d 469, 50 P.2d 1031 (1935).

In the case of State v. Trapp, 56 Or. 588, 109 P. 1094, the court made certain rulings,

"* * * which rulings, as defendant insists, were to the effect that if defendant was voluntarily intoxicated regardless of whether the result was a diseased condition of his mind, rendering him incapable of knowing the difference between right and wrong, nevertheless the jury must find him guilty of murder in the second degree, if they found him guilty at all."

It was held on appeal that no error had been committed by the trial court, and this court said:

"It seems that, although drinking probably to excess, he was going about talking with his friends, wrestling with Fraser, and seeking to scuffle with Jasperson, and when he seems to have taken offense at something said or done in Fraser's Saloon, he knew where he had left the gun, went after it, returned, ordered more drinks, and before drinking sought out the individual at whose words or acts he had taken offense, and shot him. There is nothing in this conduct on his part, or noticed by those who saw him, that indicates a diseased mind or inability on his part to distinguish between right and wrong, or that he did not know what he was doing."

"As we understand Section 1393, B. C. Comp., drunkenness alone is not insanity, and to constitute it a defense for crime it must result in a diseased condition of the mind as the result of continued drunkenness, such as delirium tremens or other form of insanity. There are many cases holding that mental incapacity, produced by voluntary intoxication, and existing only temporarily at the time of the commission of the criminal act, is no defense to the prosecution therefor. For a full discussion of this subject, see note to Harris v. United States, 32 L.R.A. 465; Upstone v. People, 109 Ill. 169; State v. Hundley, 46 Mo. 414, State v. Thompson, 12 Nev. 140; Fisher v. State, 64 Ind. 435; Gunter v. State, 83 Ala. 96 (3 So. 600); People v. Ferris, 55 Cal. 588; Beck v. State of Georgia, 76 Ga. 452."

"And in Aszman v. State, 123 Ind. 347 (24 N.E. 123; 8 L.R.A. 33), it is said that drunkenness is not insanity and does not constitute an unsound mind, unless the derangement which it has caused has become fixed and continued. See, also, Gunter v. State, 83 Ala. 96 (3 So. 600); Flanigan v. People of State of New York, 86 N.Y. 554 (40 Am. Rep. 556) Harris v. United States, 8 App. D.C. 20 (L.R.A. 465). So that the fact alone, that one is intoxicated, is not a defense for crime, except that it may be taken into consideration in determining the purpose, motive or intent with which the act is done, as specified in Section 1393, B. C. Comp.; otherwise it is unavailing, unless it results in delirium tremens or other form of insanity." State v. Trapp (supra).

The "right and wrong test" applies to cases of alleged insanity through alcoholism as fully as to alleged insanity of other types. State v. Zorn (supra).

In the case of State v. Hansen (supra), the court quoted with approval from State v. Coleman, 27 La. Ann. 691, as follows:

"Drunkenness is no excuse for a crime, and any state of mind resulting from drunkenness, unless it be a permanent and continuous result, still leaves the person responsible for his acts."

The distinction between voluntary immediate drunkenness on the one hand and derangement from the use of intoxicants which has become fixed and continued is again recognized in State v.Weaver, 35 Or. 415, 58 P. 109 (1899).

"The mental effects of a mere voluntary intoxication may not excuse the commission of an unlawful act or relieve from its consequences; but if excessive and long-continued use of intoxicants produces a mental condition of insanity, permanent or intermittent, which insane condition exists when an unlawful act is committed, such insane mental condition may be of a nature that would relieve the person so affected from the consequences of the act that would otherwise be criminal and punishable." Cochran v. State, 65 Fla. 91, 61 So. 187 (1913); See, also, Strickland v. State, 137 Ga. 115, 72 S.E. 822 (1911); and People v. DeMoss (supra).

The distinction between voluntary immediate intoxication resulting in a mental derangement which does not relieve of responsibility, and settled insanity of a more or less permanent nature which is a defense is generally recognized. A learned author asserts it to be the rule in the majority of states that neither intoxication nor temporary insanity induced by recent voluntary use of ardent spirits will excuse crime. He continues:

"The rule which refuses to recognize intoxication, or temporary insanity resulting from it, as a defense to crime or tortious acts, does not extend further, for it is well recognized that, where the intoxication has resulted in settled insanity of a more or less permanent nature, it will excuse crime committed under its promptings. It has therefore become important to know just where temporary insanity, as the term is here used, resulting from the recent voluntary use of ardent spirits, ceases, and settled alcoholic insanity, growing out of it, begins. "Some of the earlier decisions seem to hold that, where the intoxication affects the understanding of the inebriate to that extent that he can no longer entertain a criminal motive, it has become legal insanity, and may be pleaded as a defense to crime. But a different rule is now recognized by the courts of Texas and by those of the American states at large. It is recognized: (1) That a species of temporary insanity may be produced by long and continued use of intoxicants, in which state the person's mind is temporarily so affected that it is incapable of knowing the right and wrong of his acts. This condition of the mind is the direct result of the voluntary act of the defendant, in becoming intoxicated, and will not excuse crime, except to reduce the degree of murder and show the lack of a necessary intent, as we have seen supra. (2) The continued use of intoxicants may result in a breaking down of the brain and nerve cells, so as to bring about a derangement of the mind, which continues after the mere temporary effect of the ardent spirits has passed off. This condition is variously known as delirium tremens, dipsomania, alcoholic dementia, and mania a potu. Control over the derangement has at this point passed beyond the volition of the person affected, and has become an involuntary result of the intemperate act. This is what is sometimes known as settled alcoholic insanity, and it is well recognized as a form of legal insanity, in the sense that it will excuse criminal acts committed under its influence." Smoot, Law of Insanity, pp 40 and 41.

The foregoing is a mere review of well-established rules. It is, however, appropriate because it demonstrates the limited scope of legal irresponsibility as compared with the breadth of the field explored by the psychiatrist, and thus it suggests very numerous types of irrational conduct which might be of interest to an alienist but which are wholly insufficient to require the submission of insanity as a defense.

It is in the light of these principles that we must determine whether or not specific instances of irrational conduct appearing in the state's case require the submission of insanity as a defense under instructions of the court. The authorities indicate that something more than such specific instances should be required before the insanity defense can be said to have been raised. Depravity of character and abandoned habits would, of course, be admissible upon the issue of insanity where that issue is properly presented. Yet, it is held that depravity of character and abandoned habits are not in themselves evidence of insanity (irresponsibility). Neither is the commission of an unnatural or atrocious crime necessarily such evidence. People v. Spencer, 264 Ill. 124, N.E. 219 (1914); Hill v. Hill, 27 N.J. Eq. 214 (1876); Statev. Stark, 1 Strob. (S.C.) 479 (1847); In re Guiteau (D.C.) 10 Fed. 161 (1882); State v. Coyle, 86 S.C. 81, 67 S.E. 24, 138 Am. St. Rep. 1022 (1910); Ashby v. State, 124 Tenn. 684,139 S.W. 872 (1911).

In the case of State v. Grayson, 126 Or. 560, 270 P. 404 (1928), this court observed from the evidence that the defendant possessed a hasty temper, accused his daughter-in-law of lewd association, based on "such a flimsy foundation as to indicate a deep-seated and malicious hatred", that his conduct was brutal and indefensible, that he used vile language on the day of the crime, that he had threatened to kill three different people; that when making the threats he "seemed to be mad and shaking." Defendant was convicted of murder in the second degree. Defendant assigned as error the failure of the court to charge the jury on the question of insanity. The court by Justice McBRIDE said:

"There was nothing in the testimony to indicate that the defendant was mentally unsound. On the contrary his testimony indicates a normal mind, entirely capable of discriminating between right and wrong and capable of knowing the wrongfulness and unlawfulness of any action he might commit. The case did not call for any instruction on that subject."

In the case of State v. Murray (supra), defendant was convicted of murder in the first degree. The defendant had become jealous of his wife, and it preyed upon his mind.

"He indulged in drinking intoxicating beverages, as people often do when vexed and annoyed, and became infuriated and desirous of killing some one, and did not seem to have much choice as to who it should be, provided it was some one who should wait upon his wife."

"He was evidently in a rage incited by jealousy and aggravated by drink."

The trial court did in fact instruct upon insanity as a defense, but this court, by Justice THAYER said:

"Besides, there is nothing in the evidence that would have justified the jury in finding that the appellant was insane."

The reason which compelled the court to express the foregoing opinion is made clear in the further quotation:

"The court will not undertake to decide upon the facts submitted to the jury, but when a refusal to instruct the jury is assigned as error it may properly look into the evidence before it in order to ascertain whether the party complaining has received any injury therefrom, and if it appear from the whole case before the court that the ruling could not have injured the party against whom it was made, it will not reverse the judgment, although the ruling was erroneous."

In the case of State v. Zorn (supra), defendant was convicted of murder in the first degree and sentenced to be hanged. In that case the defendant had been drinking for two weeks "much of the time to excess," seemed to be "off his base" and "acted strange." He then shot his wife twice in the back and attempted to commit suicide. Again, the trial court instructed on insanity, but this court said:

"But it is extremely doubtful whether there is anything in the facts of this case at the time the shooting occurred upon which to found an instruction upon the theory that the defendant was suffering from temporary insanity as a result of intoxication or delirium tremens." (Italics ours.)

In State v. Trapp (supra), the defendant was convicted of murder in the second degree. On the day of the crime he had been drinking, and there was evidence tending to show a high degree of intoxication. He attempted to scuffle with the deceased who told him to quit, and "when defendant protested Jasperson in vulgar language again repulsed him and with his open hand pushed him back." The defendant went out, ordered whiskey, but before drinking he returned to Jasperson and said, "Now, you son of a bitch, go through," and shot him. Defendant Trapp claimed he had no recollection of the shooting and that the deceased was one of his best friends. We find in that case far more evidence of intoxication and irrational acts than in the case at bar. The insanity defense was invoked, and the transcript shows that the defendant asked for two instructions on that subject, which the court gave in substance. Yet, this court said:

"In the case before us, there was evidently no evidence tending to show insanity, either permanent or temporary, on the part of the defendant, or other condition than voluntary, immediate drunkenness, and as the verdict was `guilty of murder in the second degree,' the effect of the intoxication or condition of defendant's mind, as affecting the question of premeditation, is not involved in this appeal. Therefore, the ruling of the trial court and its instructions upon the questions, as to the degree of defendant's intoxication or its effect upon his mind, were not prejudicial."

There is a surprising similarity between the Trapp case and the case at bar. It is true that Trapp was only convicted of murder in the second degree, but we see no valid distinction in that fact so far as our present problem is concerned. Insanity as defined by the law (legal irresponsibility) is as complete a defense to second degree murder and manslaughter as it is to first degree murder, and it is insanity as a defense which we are now considering. The relevancy of mental condition on the issues of deliberation, premeditation and specific intent will receive later attention. The point is that despite evidence of gross intoxication, lack of memory, absence of motive and the like, this court said of the Trapp case that there was no evidence tending to show insanity.

In State v. Gruber, 19 Idaho 692, 115 P. 1 (1911), the evidence disclosed that the defendant beat his victim to death with a club and also showed the vicious traits and propensity of the defendant. It was held that there was no evidence submitted in the case tending to establish insanity. To the same effect seeSwain v. State, 215 Ind. 259, 18 N.E.2d 921 at p. 924 (1939); and People v. Oxnam, 170 Cal. 211, 149 P. 165 (1915).

The foregoing principles will now be applied to the evidence in this case. As we have indicated, there is substantial evidence that the defendant was intoxicated at the time of the killing. There is evidence that the defendant did in fact play cards with one Keating. Officer Mitola testified that the defendant, after the killing, stated that he had been in a card game with Keating the day preceding the killing,

"And so he told us he became involved in an argument with Keating, and Keating became quite abusive, and so he left the card room. And the next day he got to thinking about this argument, and also about the incident that occurred several years back, and he got to drinking, and the more he thought about it the madder he got, and the more he drank."

Witness Wong, who met defendant immediately preceding the killing, testified:

"I didn't say much, because I thought he had had a few drinks."

It was a very hot day. Defendant was talking "loud or boisterous". Witness Bredemeyer, who saw defendant at the time of the shooting, testified:

"I got to thinking about this fellow being drunk, and I turned around and looked."

He saw defendant talking to the deceased. Witness Wilson testified that he held defendant immediately after the shooting and that

"He had an odor of liquor. You could tell he had been drinking some. * * * He was under the influence of liquor partially."

The officers who accompanied the defendant to the police station afterwards testified:

"Q Was he intoxicated?

"A I would say so."

Witness Mitola testified that the defendant was flushed and used profane language, that he was more or less irrational.

On the other hand, there is in the record no opinion evidence on the issue of insanity, either by layman or expert. There is no evidence of chronic alcoholism or drinking over a long period of time. There is no evidence of hereditary taint. There is in fact not a single irrational act or a single delusion except those which occurred on the day of the killing, the day on which it appears defendant became voluntarily and immediately intoxicated. There is no evidence of a prior injury to the brain or of irrational conduct before or after the day. There is evidence that defendant had only one hand, though there is none as to how, where or when he lost it, or what, if any, effect it had upon him. Nor does the record disclose any evidence upon the basis of which the jury could be permitted to find that the defendant suffered from mania a potu. If this term, unique in the jurisprudence of Oregon, means merely mental derangement as a result of voluntary and immediate intoxication, then the authorities cited supra demonstrate that mania a potu is not a defense to crime. But if the term means "insanity resulting as a secondary effect produced by excessive and protracted indulgence in intoxicating liquors" in which "the patient becomes a madman fully deprived of reason while the fit is upon him" (32 C.J. p. 616, § 100; State v.Hurley, Houst. Cr. (Del) 28, at p. 35) as we think it does, then it would appear clear that mere evidence of voluntary immediate intoxication is no evidence of mania a potu, nor can it be said that such voluntary intoxication is evidence of mental disease nor of dipsomania, which seems to mean a periodical craving for drink which assails some persons with an overwhelming impulse. 32 C.J. 616, Warton S. Medical Jurisprudence, § 932; State v.Reidell, 14 Del. 470, 14 A. 550, at p. 551. There is no evidence of any periodical overwhelming craving for or impulse to drink. We grant that dipsomania results in intoxication, but do not agree that intoxication alone is evidence of dipsomania. Truly, it may be produced by intoxication, but before it can be said to raise that issue something more should be shown than the depraved conduct of a drunken capper of a Chinese gambling house.

It is suggested that the defendant was afflicted with coprolalia, which is defined as the "use of obscene or disgusting language, — a symptom of some forms of insanity." (Webster's International Dictionary.) Again, we grant that the use of obscene language may be a symptom of some forms of insanity, but cannot agree that the use of obscenity by a drunken man raises the issue of insanity in the absence of some other evidence of his mental condition. The unfortunate prevalence of bad language among both drunk and sober people would render any other conclusion most alarming.

To summarize: The evidence presented by the state and on which the defendant relies was offered not to show insanity but for other purposes. It was confined to specific instances of depraved or abnormal conduct by the defendant on the very day of the crime. All of that conduct would be explainable on either of two theories: the one, insanity, and the other, intoxication. There is no evidence to support the first theory, no previous brain injury, no abnormal conduct by the defendant prior or subsequent to the day, no opinion evidence on the subject, not even evidence of irresistible impulse (which would be insufficient even if proven). Furthermore, there is no evidence whatever of any inability of the defendant to know the nature and quality of his act, or if he did know it, to know that it was wrong. On the other hand, there is ample evidence from which the jury might have found that the defendant was terribly intoxicated, which would explain all his irrational conduct. If it is incumbent upon the defendant to prove insanity as a defense beyond reasonable doubt, and if the evidence is equally explainable on two theories, one insanity and the other intoxication, and there is supporting evidence of intoxication and none of insanity, then the defendant should be required to go further either by proof or at least by specific offer of proof before it could be said that there was any substantial evidence of insanity (legal irresponsibility).

Again, our statute provides that

"No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition." O.C.L.A. 26-929.

If evidence which may be explained by intoxication alone is sufficient to open the gates for the insanity defense, then voluntary intoxication in practical effect rises to the dignity of an affirmative defense.

Our conclusion is that the state did not offer evidence sufficient to require the submission of insanity as a defense to the jury. Defendant's motion was based on a misconception of the legal effect of the state's evidence. If the same evidence of irrational conduct had been given with no evidence whatever of intoxication, a closer question would have been presented.

It may next be urged by the defendant that even if thestate's evidence did not show insanity, nevertheless thedefendant should have been permitted to present evidence of insanity in his case. At this point the defendant encounters the barrier of our statute, O.C.L.A. 26-846 (supra), concerning notice. Doubt seems to be cast both upon the constitutionality, the construction and the application of that section. It appears valid and if properly construed, controlling. It is urged that defendant's contention is supported by an opinion of Justice Florence Allen, in Evans v. State, 123 Ohio St. 131, 138,174 N.E. 348, wherein she challenged the constitutionality of an Ohio statute which provides:

"A defendant who does not plead guilty, may enter one or more of the other pleas. A defendant who does not plead not guilty by reason of insanity shall be conclusively presumed to have been sane at the time of the commission of the offense charged, provided, that the court may, for good cause shown, allow a change of plea at any time before the commencement of the trial." Page's Ohio General Code, sec. 13440-2.

The statement of Justice Allen was pure dictum. The Ohio Supreme Court consisted of seven members. The dictum is stated to be the opinion of "two of the members of this court, including the writer of this opinion." The Evans case was decided on December 17, 1930. On December 10, 1930, the Ohio Supreme Court, Justice Allen concurring and without dissent, decided the case ofState v. Nooks, 123 Ohio St. 190, 174 N.E. 743. The section of the Ohio code under consideration read as follows:

"Whenever a defendant in a criminal cause shall propose to offer in his defense, testimony to establish an alibi on his behalf, such defendant shall, not less than three days before the trial of such cause, file * * * a notice in writing of his intention to claim such alibi; * * * in the event of the failure of a defendant to file the written notice in this section prescribed, the court may, in its discretion, exclude evidence offered by the defendant for the purpose of proving such alibi." 10 Page's General Code, § 13444-20.

The defendant had failed to give the notice required by the statute but made specific offer for the purpose of proving an alibi. The offer was rejected. On appeal the Ohio Supreme Court said:

"Upon a consideration of the entire record we see no abuse of the discretion given the trial judge in the section noted by excluding this testimony * * *." "To hold that there was an abuse of discretion under this record is to deprive section 1344-20 of any force and effect, as it is difficult to conceive how any alibi testimony in a criminal case would not tend to disprove the testimony offered by the state upon the point of the whereabouts of the accused at the time and place of the commission of the offense.

"Not being willing to disregard the statute in question * * *."

The conviction was affirmed.

The Ohio statute on alibi in form closely resembles the Oregon statute on insanity. It appears probable that the Ohio statute on the insanity plea will be held constitutional by the courts of that state. See 6 Cincinnati Law Rev. 1932, p. 313.

The law is well established that where a defendant is afforded the opportunity by statute to raise the question of his irresponsibility by reason of insanity at the time the act was committed but chooses not to do so and interposes only a general plea of not guilty, he cannot under such plea claim irresponsibility by reason of insanity and demand an acquittal by reason thereof. This much is conceded in Ingles v. People,92 Colo. 518, 22 P.2d 1109, to which reference will be later made.

The following states have enacted laws which provide that one who intends to rely on the insanity defense shall, at a time usually specified, give notice thereof. In some instances a formal plea is required; in others only a notice in the nature of a specification under the plea of not guilty. Alabama: 2 Code Ala. (Criminal) 1896, Sec. 4939, Code Ala., 1928, Sec. 4873; California: Deering's Penal Code of Cal., 1931, Sec. 1016, 1026; Colorado: Colo. Stats. Anno., 1935, Sec. 507; Louisiana: Code of Criminal Procedure, 1929, Art. 267, Dart's Code of Criminal Procedure, 1932, Art. 261 and 267; New Hampshire: Public Laws, 1926, Chap. 369, Sec. 2; New York: 66 McKinney's Consol. L. p. 536, sec. 336; Code, 1933, Sec. 336; Ohio: Page's General Code, sec. 13440-2; Wisconsin: Statutes, 1939, Sec. 357.11.

Under these statutes it is well established that a defendant who fails to give notice or enter a special plea at the time required has no absolute right to avail himself of the insanity defense, although in some states the court may, in its discretion for good cause shown, permit him to do so.

An Indiana statute provided:

"When the defendant desires to plead that he was of unsound mind when the offense was committed, he, himself, or his counsel must set up such defense specially in writing; and the Prosecuting Attorney may reply thereto by a general denial in writing." Indiana Revised Statutes, 1881, Sec. 1764.

In Walker v. State the defendant was indicted for assault with intent to commit murder. Defendant was convicted. Upon appeal the court said:

"We are of the opinion that the court did not err in refusing to permit the appellant to introduce evidence tending to prove that he was of unsound mind. No issue of that kind was involved in the case. Section 1764, Rev. St. 1881, requires insanity to be specially pleaded. In the absence of such a plea, the state is not expected to be prepared to meet such an issue. If the appellant desired to avail himself of such a defense, he should have pleaded it specially, which he did not do." Walker v. State, 136 Ind. 663, 36 N.E. 356 (1894).

The Indiana statute does not specify the time at which written notice is to be given, but the validity of the statute is affirmatively recognized in Swain v. State,215 Ind. 259, 18 N.E.2d 921 at 922.

The Alabama statute provides:

"When the defense of insanity is set up in any criminal prosecution it must be by special plea, interposed at the time of arraignment and entered of record upon the docket of the court, which in substance shall be, `not guilty by reason of insanity.' Such plea shall not preclude the usual plea of the general issue, which shall not, however, put in issue the question of the irresponsibility of the accused by reason of his alleged insanity, this question being triable only under the special plea." Criminal Code of Ala., 1896, § 4939.

In Morrell v. State defendant was convicted of murder in the first degree. Upon arraignment she plead not guilty. When the cause was called for trial on the day set therefor, the defendant, through her attorney, asked leave of the court to withdraw the plea of not guilty and put in a plea of not guilty by reason of insanity. Objection was made by the state on the ground that the plea came too late. Objection was sustained by the trial court, and exception was duly taken. The court cited the statute and said:

"Defendant's absolute right to defend on the ground of insanity was lost by her failure to plead to that end when she was arraigned, and her right to thereafter interpose that defense was subject to the trial court's discretion. If it be conceded that the court's action in that regard can be properly reviewed, the revision cannot extend beyond the ascertainment of whether there was an abuse of discretion; and that there was such abuse in the present case does not appear." Morrell v. State, 136 Ala. 44, 34 So. 208 (1903).

In State v. Toon the defendant was indicted for murder. A Louisiana statute provided for the entry of a plea of insanity (Sec. 261) and further provided:

"Whenever insanity shall be relied upon either as a defense or as a reason for defendant's not being presently tried, such insanity shall be set up as a separate and special plea and shall be filed, tried and disposed of prior to any trial of the plea of not guilty, and no evidence of insanity shall be admissible upon the trial of the plea of not guilty." Code of Criminal Procedure (Dart, 1932) Art. 267.

The defendant objected to arraignment under the provisions of the code on the ground that those provisions relative to arraignment and trial and pleas of insanity were unconstitutional. The objection was overruled. Defendant then stood mute, whereupon the court, as provided by law, entered a plea of not guilty for him. Defendant refused to plead insanity when the case came to trial, but under the plea of not guilty he called physicians to testify as to insanity at the time of the commission of the offense. The offer of proof was refused by the court. Thus the issue concerning the constitutionality of the statute was directly before the Supreme Court on appeal. That court said:

"The objection that the defendant has to article 261 of the Code of Criminal Procedure seems to be that prior to its adoption, the sanity of the accused was an issue in the case, of which the accused could avail himself by the introduction of evidence to show his insanity, under the plea of not guilty, whereas, under this article of the Code, the sanity of the accused is not put at issue by the plea of not guilty, but requires a plea of insanity to put it at issue.

"The effect of the article is merely to make a change in procedure by which the question of insanity is withdrawn from the plea of not guilty, and required to be raised by a distinct plea.

"There is nothing which, by this change, deprives an accused of a single constitutional right, or which makes the article unconstitutional. The article does not deprive defendant, in any manner whatever, of the right to a speedy public trial by an impartial jury." State v. Toon, 172 La. 631, 135 So. 7 (1931).

In the Washington case of State v. McLain, 199 Wash. 664,92 P.2d 875, the defendant, who did not give the required notice, offered to call a physician to testify as to the insanity of the defendant. The offer was rejected, and the Supreme Court affirmed. The statute, although not identical with our own, yet closely resembles it, and the validity of the Washington statute is recognized by the decision of the court which enforced its terms. See also People v. Morgan, 9 Cal. App. 2d 612,50 P.2d 1061.

The California statute, Penal Code, 1931, Sec. 1016, provides for various pleas, among them "Not guilty by reason of insanity." The same section further provides:

"A defendant who does not plead not guilty by reason of insanity shall be conclusively presumed to have been sane at the time of the commission of the offense charged, provided that the court may for good cause shown, allow a change of plea at any time before the commencement of the trial."

In People v. LaCrosse, 5 Cal. App. 2d 696, 43 P.2d 596 (1935), the defendant being charged with robbery refused to plead upon arraignment, whereupon trial court directed the clerk to enter a plea of not guilty. At the inception of the trial, but after the defendant had answered "ready", the defendant moved for leave to add to his plea of not guilty a special plea of not guilty by reason of insanity. The trial court refused to permit defendant to add the special plea. The propriety of this ruling being raised upon appeal, the court said:

"The point is without merit. It was determined adversely to the contentions here made in People v. Hall, 220 Cal. 166, 30 P.2d 23, and an appeal in that case to the Supreme Court of the United States was dismissed, 292 U.S. 614, 54 S. Ct. 869, 78 L. Ed. 1473."

The court said further:

"The defendant had ample opportunity to enter the special plea if he had desired and no statute or rule of law denied that right if exercised within a reasonable time. The defendant was arrested on July 27, 1934. He was arraigned and his trial was set for September 24th by consent. The trial commenced on October 18th, at which time he asked leave to change his plea. He was represented by counsel when arraigned and at all subsequent proceedings. Thus there has been no denial of the constitutional guaranty of due process, but merely a failure to use the due process provided for his benefit. In support of the point, the appellant argues that section 1016 of the Penal Code is unconstitutional in that it declares that one who fails to make the plea `shall be conclusively presumed to have been sane at the time of the commission of the offense charged.' The same question was decided adversely in People v. Troche, 206 Cal. 35, 48, 273 P. 767."

In People v. Nolan, 126 Cal.App., 623, 14 P.2d 880, the defendant was convicted of murder and upon appeal predicated error,

"* * * Upon an order made by the trial court, after the trial of defendant had commenced and had been in progress for several days, by which was denied the motion made by defendant that he be permitted to add a plea of `not guilty by reason of insanity' to the former plea interposed by him of `Not guilty'."

The cause had been pending for some months and had once been delayed at defendant's request. Three days before the date set for the trial defendant's attorney orally requested permission to enter the additional plea of "not guilty by reason of insanity." The motion was renewed at the commencement of the trial, but there was no showing of good cause in connection with either motion. A third motion was filed during the progress of the trial, which was supported by affidavits which were answered by counter-affidavits on behalf of the state. The court said:

"In the instant case, since no attempt was made by defendant on either the first or the second presentation of the motion to show `good cause,' it is plain that no error was committed by the trial court in its order by which the requested leave was denied. As to the third of such applications, aside from the sufficient reason for its denial found in the clear indication contained in the language of the statute, that, even assuming that `good cause' may appear, the motion must be made `before the commencement of the trial' (which was not done in the instant case), the ruling in People v. Northcott, 209 Cal. 639, 654, 289 P. 634, 70 A.L.R. 806, to which attention hereinbefore has been directed, is to the effect that the determination of such an application rests within the discretion of the trial court. Since the record herein discloses the situation that the facts which appeared by the several affidavits of the respective parties afforded ample justification for the conclusion reached by the trial court on determination of the motion, it follows that the said court did not abuse its discretion in making the order of which complaint is made."

And to the same effect, see People v. Nolan (supra), andPeople v. Northcott, 209 Cal. 639, 289 P. 634, 70 A.L.R. 806.

Two well-considered cases, both from the Supreme Court of California, expressly uphold the constitutionality of the California statute as being a regulation of procedure only which does not deprive the defendant of any constitutional right.People v. Troche, 206 Cal. 35, 48, 273 P. 767; People v. LeongFook, 206 Cal. 64, 273 P. 779, and see People v. La Crosse,5 Cal. App. 2d 696, 43 P.2d 596.

The foregoing authorities establish that the Oregon statute, insofar as it requires notice of purpose to present the insanity defense, is valid. Counsel for the defendant recognized and the authorities also demonstrate that the statute was applicable to the case at bar and that the only question is whether the trial court abused its discretion. No such abuse appears from the record. No question was ever asked concerning the defendant's ability to distinguish between right and wrong or concerning his previous or subsequent mental condition. No expert was called. No offer of proof of any facts relevant to the insanity issue was made, nor is complaint here made of the exclusion of any specific evidence on that issue. The ensuing review of the record discloses that defendant's contentions were based on the evidence adduced by the state, and it fails to disclose that the defendant had any new evidence of alleged insanity to offer. In the course of the trial, defense counsel made the following statements:

"In view of the statements by Mr. Bain in his opening statement, the actions can only be explained on the basis of an insane man, and we feel it necessary to put in that defense."

"Mr. Elliott: The insanity proposition arises with Mr. Lomax and I solely upon Mr. Bain's statement of what Ralph Scheurer is to testify to * * *."

"Mr. Lomax: * * * In view of the testimony of Mr. Scheurer, the defendant wishes to renew his motion to allow him to include as a defense, and in excuse to any act he is accused of by the indictment in this cause, the ground of temporary insanity * * *." (Italics ours).

"Mr. Lomax: The defense has made a motion to allow the defendant to include in his plea of Not Guilty the plea of Not Guilty by reason of insanity based solely on the State's case." (Italics ours).

"Mr. Lomax: (speaking of the statute) * * * It means when facts develop in the trial of the case of which defense counsel has no way of knowing, no way of ascertaining, then it is an abuse of the Court's discretion to say you can't interpose a plea of insanity where a plea of insanity should be put forth by the defendant to excuse him for his acts." "* * * The defense hasn't put one witness on the stand yet — the State's own witnesses have proved the case of insanity beyond a question of reasonable doubt."

Defendant's contentions are based solely on the state's evidence, and his case must stand or fall upon the proper construction of that evidence, which, as we have seen, is insufficient to require the submission of the insanity issue. The only surprise claimed by counsel for the defendant was that they did not know of the specific language employed by the defendant before the killing.

In this connection an opinion of the Washington Court is suggestive. The Washington statute provided that:

"When it is desired to interpose the defense of insanity or mental irresponsibility, * * * the defendant * * * shall, at the time of pleading to the information or indictment, file a plea * * * setting up his insanity or mental irresponsibility, * * *."

and further provides that

"The plea may be interposed at any time thereafter before the submission of the case to the jury, if it be proven that the insanity or mental irresponsibility of the defendant at the time of the crime was not before known to any person authorized to interpose a plea." Rem. Stat. § 2174.

On the third day of the trial defendant served a special plea of insanity. The attorney stated that he had conceived the idea as a result of testimony previously given by police officers concerning admissions and contradictory statements made by the defendant. The trial court rejected the plea, and upon appeal the Supreme Court said:

"The proof in support of the plea was insufficient because it was not shown that appellant's attorney did not know of his client's insanity. The evidence was merely that the appellant had not told his attorney of certain contradictory statements previously made by him to the investigating officers. Lack of information by the attorney concerning appellant's prior admissions did not establish his lack of knowledge of the primary fact of insanity." State v. McLain (supra).

By a similar process of reasoning, we hold that the defendant has not sufficiently shown just cause for failure to file the notice required by statute when he merely shows by counsel's unsworn statement that counsel did not know of certain specific language used by the defendant and disclosed by the state. If we assume, contrary to fact, that the defendant had testimony of insanity to offer and offered it, still the defendant has not shown any just cause for failure to give the notice required by statute. The only matter which could be or was claimed as just cause for such failure is the alleged fact that the defendant's counsel did not know what specific language was used by the defendant on the day of the shooting and while he was intoxicated. If that language and conduct was insufficient to raise the issue of insanity, then ignorance of it was insufficient to establish just cause for failure to give the required notice.

It is earnestly and persuasively urged that evidence of insanity or mental defect, if not admissible as a defense under the statute, should in any event be received as bearing on the issue of premeditation and deliberation and for the enlightenment of the jury in determining the penalty — whether death or life imprisonment. This position presupposes that there was such evidence of insanity and that its existence was made known to the court, a matter which has already been discussed. Furthermore, there was no specific offer of testimony of insanity for the purpose of reducing the offense to second degree murder or mitigating punishment, or for any other purpose. The record as quoted also makes it clear that defendant was not asking to present alleged insanity to reduce the degree or mitigate the punishment. They repeatedly stated their claim that the insanity issue should be submitted as a defense.

But there is a more fundamental objection to the suggested construction. In support of defendant's position reference has been made to the Colorado case of Ingles v. People (supra). The court in that case stated that insanity as a defense was not admissible under the Colorado statute, but it said further:

"But is he entitled to introduce evidence of insanity or mental derangement short of insanity for the purpose, not of acquittal, but of reducing the grade of the crime from murder of the first degree to murder of the second degree? Some courts hold that he cannot do so. People v. Troche, supra. We believe that the weight of authority and the better reason are to the contrary."

The force of the Colorado decision is lost when the statute upon which the decision was based is compared with that of Oregon. The Colorado statute provides in part:

"If one of the defenses of the defendant be insanity, said defense must be pleaded orally * * * as a specification to the plea of not guilty * * *." 2 Colo. Statutes Ann., 1935, Sec. 507, p. 1150. (Italics ours.)

The Colorado statute and those of most of the states requiring a special plea of insanity are clearly limited in their purview to a situation in which insanity is to be urged as adefense. The Oregon statute is not so limited. It clearly applies to cases in which the defendant purposes to show insanity as a defense (with us an affirmative defense). But it also applies when insanity is to be employed not as a defense but to reduce the degree or mitigate the punishment. By its terms, notice is required where the defendant "purposes to show in evidence that he was insane or mentally defective at the time of the act." There is nothing in the Oregon statute which limits its application to cases in which insanity is to be employed for the more important purpose of acquittal but which excludes from its application cases in which insanity is to be employed for the lesser purpose of mitigation. In this aspect the Oregon statute resembles the Ohio statute requiring notice of intention to prove an alibi. It is a requirement of reasonable notice of intention to prove defensive matter. The decision sustaining the alibi statute is persuasive here.

In Colorado, unlike Oregon, the state has the burden of proving sanity beyond a reasonable doubt. Jones v. People,23 Colo. 276, 47 P. 275 (1896); Pribble v. People, 49 Colo. 210,112 P. 220 (1910); Ingles v. People (supra). Its courts uphold the validity of a statute which requires notice of intention to produce evidence of insanity as a complete defense, though that evidence is to be employed only negatively on an issue which the state must prove. Ingles v. People, (supra). If that statute is valid, a fortiori, the Oregon statute is likewise valid when construed as requiring notice of intent to produce evidence of insanity for the defensive purpose of reduction of degree or mitigation of punishment.

The Oregon statute is modeled upon Section 235 of the Code of Criminal Procedure adopted by the American Law Institute, although the stringent requirements of the Model Code are somewhat relaxed in the Oregon statute. The Model Code, Section 235, is as follows:

"Where the defendant pleads not guilty and purposes to show in evidence that he was insane or mentally defective at the time of the alleged commission of the offense charged, he shall at the time he pleads, or at any time thereafter, not later than four days before trial, file a written notice of his purpose. If the defendant fails to file such notice he shall not be entitled to introduce evidence tending to establish such insanity or mental defect. The court may, however, permit such evidence to be introduced where good cause for the failure to file the notice has been made to appear."

Neither the Model Code nor the Oregon statute makes any reference to insanity as a defense, but both are directed to theexclusion of evidence of insanity unless notice is given or good cause shown. The Model Code provides that upon failure to file such notice defendant "shall not be entitled to introduceevidence tending to establish such insanity or mental defect." (Italics ours.) The Oregon statute provides that he shall not be entitled to introduce evidence for the establishment of such insanity or mental defect. Again, our statute employs the phrase "insanity or mental defect," the apparent purpose of which was to make sure that the statute should require the giving of notice where mental disease is to be shown, even though that disease or mental defect is not of such a character as to constitute "insanity" as defined by the law. There is no more procedural hardship in requiring notice, when insanity is to be shown to negative premeditation or to mitigate punishment than there is when it is offered as a defense.

The leading case in support of this position is from the Supreme Court of California, People v. Troche, (supra). In that case, after a full discussion of the constitutionality of the California statute, the court considered the identical proposition which is advanced in behalf of the defendant in the case at bar. The defense in the Troche case contended:

"Second, that, when properly construed, the statute eliminates from the consideration of the jury during the trial of the general issue the question of the `legal insanity' of the defendant — the only kind of insanity which excuses one from punishment for a crime committed — but does not prevent the introduction of the evidence tending to establish the mental condition of the accused at the time the offense was committed, for the purpose of showing a lack of criminal intent, malice, or premeditation, such evidence to be also considered by the jury, in the exercise of its discretion in a trial for murder, in fixing the degree of the crime and the punishment at life imprisonment or the extreme penalty, if it finds the offense to have been murder in the first degree."

This contention was rejected. The court said:

"The trial court committed no error in strictly following the letter of the statute (Pen. Code, §§ 1020 and 1026) and excluding on the trial of the general issue of not guilty, all evidence tending to show the mental condition of the defendant at the time of the commission of the offense." * * *

"It follows, therefore, that any evidence tending to establish the insanity of the defendant under his plea of not guilty by reason of insanity at the time of the commission of the homicide, other than evidence of the immediate circumstances of the offense, would have been irrelevant and immaterial on the trial of the general issue as to the guilt or innocence of the defendant raised by the general plea of not guilty. As the statute accorded the defendant his full right, and ample opportunity to submit to a jury his plea of insanity at the time of the commission of the offense, in excuse of his act and as a reason why no penalty of the law should be visited upon him, it follows that the trial court correctly excluded the evidence on the trial of the general issue."

The wisdom of the provisions of the Model Code, prepared by a group of profound specialists in criminal law is apparent. If notice should be required only when insanity is presented as a defense, a defendant having conclusive evidence of insanity could present his entire case, embellished with the testimony of alienists applying the right and wrong test, without giving any notice, by merely asserting that it was offered to disprove deliberation or the like. With such evidence in the record it would be a bold judge indeed who would refuse to submit also the issue of insanity as a defense. Such a construction of our statute would nullify all the benefits for which it was passed.

For the reasons stated, our conclusion is that the Oregon statute is valid, that the defendant has failed to comply with it, that no just cause for failure has been made to appear and that there was no abuse of discretion in the denial of the defendant's motion for leave to file the required notice.

This conclusion is not based alone on the above considerations. The record shows that the court in the exercise of its discretion gave careful consideration to the equities of the situation. At the request of the defendant and at expense of the state an eminent psychiatrist had been employed who before trial had examined the defendant and had reported that he was sane, which report was in the hands of defendant's attorneys. When, at the trial, the defendant moved for leave to introduce the insanity defense, the report was produced, and the court examined it. The court was justified in concluding that the defendant's counsel had fully explored the matter of defendant's mental condition and had deliberately omitted to raise the issue. The court was also impressed by the fact that defendant's delay in raising the issue had lulled the prosecution into a sense of security, with the result that it had not examined the jurors concerning their attitude on the insanity defense, which was a clear right of both parties if insanity was to be in issue. The statute is in complete harmony with the modern doctrine in the entire procedural field, which is to require frank disclosure of issues and evidence and to avoid surprise and chicanery. If, in the absence of notice or just cause for failure to give notice, the court permits the issue of insanity to be raised, the statute itself becomes a trap for the prosecution instead of an aid in the administration of justice.

The crime was committed on August 8, 1941, on which date the defendant was arrested. He was indicted on September 12, 1941, and arraigned on September 17th. Upon arraignment the cause was continued for motion or plea. On September 30th, the defendant's attorneys moved for the appointment of an expert to examine the sanity of the defendant. On October 2, the court made an order authorizing defendant's attorneys to employ at the cost of the state a qualified physician "to determine the sanity or insanity of the defendant at the time of the commission of the alleged crime." On October 21, the defendant plead not guilty. The cause came to trial on November 18, 1941. Defendant's counsel were afforded ample facilities and time within which to investigate the mental condition of the defendant, both before and after the entry of his plea. There was no abuse of discretion by the court in ruling upon the belated motions of the defendant in the midst of the trial.

The court clearly instructed the jury upon all phases of the case. On the issue of intoxication, it instructed in part as follows:

"Although intoxication does not justify or excuse the commission of a crime, it is a fact or circumstance to be considered in determining the question of premeditation and deliberation * * *."

"I further instruct you that no act committed by a person while in a state of voluntary intoxication shall be less criminal by reason of his condition, but the fact may be considered in determining the purpose, motive, or intention with which he committed the act.

"I further instruct you in this connection that voluntary intoxication, to be available as a defense, must result in a diseased condition of the mind, delirium tremens, or some other form of insanity, and, therefore, in such a case, the burden is upon the defendant to prove such fact beyond a reasonable doubt as in other cases of insanity."

It has been suggested, though not by the defendant, that, by instructing as it did, the court must have had the opinion that the issue of the defendant's mental condition was one properly to be considered. It is true that the mental condition, so far as it was affected by voluntary intoxication was properly to be considered, and it was properly submitted to the jury. The reference in the court's instructions to intoxication which results in "delirium tremens or other form of insanity" as to which "the burden is upon the defendant to prove beyond reasonable doubt", was obviously made as a proper limitation upon the instruction concerning intoxication and not for the purpose of submitting insanity as a defense to the jury. In any event, no exception was taken to that instruction. The complaint of the defendant is not that such instruction was given, but it is rather that additional instructions presenting the insanity defense were not given.

The inference has been drawn that the defendant was a poor man because of the fact that the court appointed two attorneys to defend him. In the proposition that rich and poor should enjoy equal protection of the law, we heartily concur, but defendant's financial condition should be and is wholly immaterial if he received a fair trial, as we find that he did. We are conscious of the sacredness of human life and the gravity of this case, but this court is not authorized to determine the penalty which should be imposed for this atrocious crime. Since life is at stake, we must proceed with extreme caution for the protection of all rights of the accused, but we are authorized only to determine if error was committed at the trial and if the fundamental principles which underlie all judicial procedure were respected.

Finding no error and no want of due process, the conviction is affirmed.