This homicide was unusual, because of the relations of the parties and the character of the deed. It was matricide; i.e., the murder of a mother. The defendant did not deny the killing, but interposed and sought to establish the defense of toxic insanity, brought about by the long continued use of morphine and alcoholic stimulants, combined with a chronic case of syphilis.
The jury having found the defendant mentally responsible for his act, the only question for their determination was the degree of the crime; yet I observe from this record that, when the jury retired to consider the case, they were given 27 instructions and 7 forms of verdicts; why, I do not understand. A more ragged record in a capital case has never reached this court.
Bare proof of an unlawful killing does, it is true, establish prima facie a case of murder, but only murder in the second degree. If the state demands a verdict of murder of the first degree, the burden is upon it to prove beyond a reasonable doubt some facts or circumstances from which it may be rationally inferred that there was on the part of the defendant a deliberate purpose to take the life of the deceased. The question of the degree of the crime is exclusively for the jury, and their determination will not be disturbed when there is any evidence to support it. I shall therefore, confine myself to a discussion of the single question of the sufficiency of the evidence to establish murder of the first degree.
In a case of homicide, the relations existing between the parties are worthy of much consideration. Undoubtedly where the party slain is a parent (particularly a mother), or some near friend or relative, and no particular cause for the act is assigned, it raises a fair presumption that it was due to insane impulse or misadventure. Dean's Medical Jurisprudence, 577; Wharton's Crim. Law (11th ed.), sec. 158. "The mere *Page 250 motiveless destruction of life can with difficulty be regarded as the act of a sane mind." We look in vain for a motive on the part of this defendant to take the life of his mother. The jury, in finding the defendant guilty of murder in the first degree, obviously ignored the relations of the parties, and apparently were not influenced by the fair presumption that his act was the result of an insane impulse, but, on the contrary, must have inferred from his violence, taken in connection with his exclamation, "I will kill you; I will kill you," that he designed to effect the death of his mother. Such I concede might be the natural inference in the absence of surrounding circumstances repelling the idea.
The relations between the parties were such that they occupied the same room in the lodging or rooming house owned and conducted by the deceased in Reno, Nevada. The defendant was unfit for any employment, and was supported by his mother. The evidence tends to show that he was a physical wreck. We know nothing of their mode of living, but the inference is that the defendant was, in fact, a man child. He came home in the early morning hours of June 30, 1925, in such an intoxicated condition that he had to be assisted into the house and to his room, where he was left on a couch. His mother refused to get up and make him a cup of coffee and to undress him for bed, and, because of his abusive epithets, threw a glass of water upon him; she then started to call for help. The defendant in a temper struck her a blow on the head with his fist that knocked her to the floor. He then beat and kicked her. Neighboring roomers hearing a noise emanating from the room entered and found the defendant with his knees upon his mother's stomach and his hands to her throat, exclaiming, "I will kill you; I will kill you." The mother died on the 2d day of July, 1925.
Assuming this account as given by the deceased to a third party of the assault made upon her by the defendant was true, and that it was properly admitted in evidence, a question upon which I express no opinion, the *Page 251 inference is irresistible that the killing was the result of an insane impulse or of the unusual and unnatural excitement under which the defendant labored. The defendant used no weapon; all he did to the deceased was with his fists and feet. Undoubtedly the act was cruel and malignant, but, in my opinion, there is absolutely no evidence from which it can rationally be inferred that there was any deliberate intention on the part of the defendant to take the life of his mother. The testimony of the autopsy surgeon shows that death was caused from a hemorrhage on the brain produced by some blunt force which caused a shaking of the brain, enough to tear one of the blood vessels. There was no fracture of the skull and no marks on the head. There were, however, a number of blue spots on the body, and both lids of the left eye were discolored.
It is argued that the blow with the first followed by beating and kicking, taken in connection with the exclamation, "I will kill you; I will kill you," warranted the jury in finding the existence of deliberation. I am of opinion that under the circumstances this exclamation, instead of being indicative of deliberation, accentuates the fact that the defendant was laboring under a frenzy produced by anger.
I concede that "uncontrollable or irresistible impulse," beginning on the eve of the criminal act and ending with its consummation, has no legal standing as a defense to crime; but it should be remembered that, while "irresistible impulse," the mind being sane, is no defense to crime, yet violent passion is to be taken into account as a mitigating element, since the law treats assaults committed in hot blood as of a lower grade than those committed deliberately. Wharton Stille's Med. Jur. (5th ed.), vol. 1, sec. 194. Evidence of circumstances of provocation, as tending to arouse passion, is admissible in mitigation of the crime under certain conditions as to disprove premeditation. This is especially so where it is not certain whether accused designed to effect the death of deceased and his act was not one *Page 252 likely to cause death. 30 Corpus Juris, 224, sec. 456. I concede that there was no provocation in this case sufficient to excite a rational or sane person to do an unlawful act; but, however trivial the provocation may have been, the defendant in a frenzy of anger made a cruel and malignant assault upon his mother, whom it was his duty to shield and protect. Every fact and circumstance attending the killing, in my opinion, refutes the state's position that the law may infer deliberation from the peculiar cruelty of the deed, and takes this case without the rule established by those extreme cases cited by Wharton in support of the text that a killing under circumstances of great atrocity warrants an inference of malice, premeditation, and deliberation. Wharton on Homicide (3d ed.), sec. 151. Under a statute which divides murder into two degrees I have been unable to find a case like the present where the accused was convicted of murder in the first degree.
There is another view which may, and I think should, be taken of this case. The defendant's life from childhood was before the jury. I shall not review it. Suffice to say that from youth on the defendant wandered through life in both "moral and intellectual darkness," making his own path. For twenty years prior to the homicide he was a confirmed morphine fiend. He had been twice committed to the Nevada State Hospital for Mental Diseases for having narcotic drugs in his possession, once in 1922 and once in 1924. It is conceded that for three or four years prior to the homicide he was an habitual user of intoxicating liquors, ostensibly of bootleg manufacture, commonly conceded to be a predisposing cause of toxic insanity. For the past ten years the defendant had been treated intermittently for syphilis. It is true the state, in rebuttal, produced evidence tending to show that the defendant at the time of the homicide was mentally responsible for his act, but the fact that he was so responsible did not make the killing murder of the first degree. Morphine, alcohol, and syphilis have much to do with the genisis of all *Page 253 forms of mental disease. True, the mere use of morphine or alcohol is no excuse for crime, but it must be conceded that the long-continued use thereof produces serious disturbances of the central nervous system. Mental derangement is a common effect of the long-continued use of these poisons, and crime is its unfortunate accompaniment. See discussion of "toxic insanities" in "A System of Legal Medicine" (Hamilton and Others), vol. 2, 205.
If it be conceded that one afflicted as the defendant was never loses the power to distinguish between right and wrong, and is at all times master of himself and may control his actions, still his mind may be enfeebled, and the power of his will weakened, so that he will readily yield to the influence of the least and most trivial provocation without that willful, deliberate, and premeditated malice which is essential to constitute murder in the first degree. Anderson v. State,43 Conn. 526, 21 Am. Rep. 669. Conceding that this defendant could distinguish between right and wrong, still the best evidence that his mind was enfeebled and his will weakened by disease is that, without any sufficient provocation, justification, or excuse, he committed an act of violence upon his mother which resulted in her death. If there is no mental disease, one who commits a homicide in a frenzy produced by anger, although he may be unable to control himself, is fully responsible for the homicide. 29 Corpus Juris, secs. 16, 1056. But, in a case like the present, where the accused is shown to be afflicted with disease which leads to a degeneration of the entire nervous system and to mental imbecility, the jury, in fixing the degree of the crime, should make allowance for his enfeebled mind and weakened will.
Upon a careful consideration of all the evidence, I am of opinion that it did not warrant the jury in finding the existence of the deliberation and premeditation necessary to constitute the highest degree of felonious homicide. I therefore register my dissent from the order directing the court below to make the proper order *Page 254 for carrying into effect the judgment sentencing the defendant to the lethal chamber.
ON PETITION FOR REHEARING March 2, 1926.