In my opinion the killing of his wife by appellant, in the manner and under the circumstances detailed in the confession and set out in the opinion of the court, if done by a sober, sane man, would constitute murder in the first degree. There was sufficient time for him to deliberate, between the picking up of the iron with which he struck the fatal blow, before leaving the car, and the time when his wife knelt for the purpose of looking under the car and received the blow. However, aside from this, it is held in other jurisdictions under statutes similar to ours that brutal murders of this type committed under similar circumstances offend against the first-degree murder statute. The Supreme Court of Missouri in State v. Duestrow, 137 Mo. 44,38 S.W. 554, 566, 39 S.W. 266, said: "It is asserted that the court should have instructed the jury on murder in the second degree. We are of a different opinion, and for several reasons: * * * An answer equally good to defendant's contention on this point is found in the circumstances of the homicidal act, which gave origin to the present prosecution. * * * It is well settled at common law, still in force in this state, that, when a homicide is committed in circumstances of great barbarity and cruelty, such brutal malignity will supply the place of malice, and make the act of killing equivalent to a deliberate act of slaughter, — murder at common law, and murder in the first degree under our statute."
The Supreme Court of Arkansas in Bell v. State, 120 Ark. 530,180 S.W. 186, 187, 197, said: "Now, if the defendant was sane, it was manifest, from the enormity of the crime and the shocking manner of its perpetration, that he was guilty of murder in the first degree. The jury were told in this declaration of law that a perverted and a deranged mental condition, either partial or general, which rendered the defendant incapable of deliberating or premeditating as to the commission of the particular act, might not excuse him, but that the jury might find him guilty of murder in the second degree. The jury could have concluded that, if his perverted and deranged mental condition would not excuse him for murder in the second degree, it ought not to relieve him from responsibility for the higher and the only offense of which he could have been convicted under the evidence and the other instructions of the court. This part of the instruction was misleading, contradictory in itself, in conflict with other instructions, and highly prejudicial to the defendant. This part of the instruction, if it means anything, was doubtless an attempt to state the principle announced in the third test; but, if so, it was an incorrect statement of it, and well calculated to confuse the jury. Under the evidence it had no place in the case."
Appellant's confession, aside from the narration of events, was a plea of mental irresponsibility — insanity — closing with the following: "I knew something terrible had happened. I did not know until tonight what it was or how it happened."
Appellants' able counsel, no doubt wisely, decided that a plea of insanity would be *Page 206 of no avail to their client, and relied upon the theory of accidental homicide.
The better doctrine is, I believe, that insanity does not reduce the crime from murder in the first degree to murder in the second degree. This seems to have been the rule of our territorial court. Territory v. Kennedy, 15 N.M. 556, 110 P. 854. In People v. Troche, 206 Cal. 35, 273 P. 767, 772, the Supreme Court of California held: "The insanity of a defendant cannot be used for the purpose of reducing his crime from murder in the first degree to murder in the second degree. If responsible at all in this respect, he is responsible in the same degree as a sane man, and if he is not responsible at all he is entitled to an acquittal in both degrees. State v. Maioni, 78 N.J. Law, 339,74 A. 526, 528, 20 Ann. Cas. 204."
And in Commonwealth v. Hollinger, 190 Pa. 155, 42 A. 548, 549, the court quoted from United States v. Lee, 4 Mackey (15 D.C.) 489, 54 Am. Rep. 293, with approval, as follows: "`It rests upon the idea that there is a grade of insanity not sufficient to acquit the party of the crime of manslaughter, but yet sufficient to acquit him of the crime of murder. The law does not recognize any such distinction as that in the forms of insanity. * * *'"
To the same effect, see State v. Green, 78 Utah 580,6 P.2d 177, 184; Witty v. State, 75 Tex.Crim. R., 171 S.W. 229, 238; State v. Kotovsky, 11 Mo. App. 584; United States v. Lee, 4 Mackey (15 D.C.) 489, 54 Am. Rep. 293; Commonwealth v. Scott, 14 Dist. Co. Rep. (Pa.) 191; and People v. Kelley, 7 Cal.App. 554, 95 P. 45.
I regret being obliged to differ from my learned colleagues, but for the reasons stated I dissent.