State v. Barton

236 S.W.2d 596, 361 Mo. 780, 1951 Mo. LEXIS 569

• Court: Supreme Court of Missouri
• Decided: February 12, 1951
• Docket: 41731
• Status: Published

Opinions

LOZIER, C.

[ 596] Appellant, hereinafter called, defendant, was convicted of grand larceny and sentenced to two years imprisonment. He filed here a transcript of the record, including the bill of exceptions containing all the evidence, but no brief, and the appeal was submitted upon the attorney general’s brief. In his motion for new trial defendant challenged the propriety of the insanity instruction given by the court on its own motion and complained of the refusal of the insanity instruction requested by him. The main issue is the quantum of proof required of the defendant whose defense was insanity.

Defendant’s refused insanity instruction, Instruction A, referred to “a mental disease commonly known as ‘blackout’ or ‘amnesia.’ ” Defendant claimed the court erred in refusing this instruction because the word “ ‘blackout’, a common phrase used in describing the type of insanity alleged by defendant, was not covered in any other instruction.” Except for the use of these two terms, the mental condition involved was defined substantially in Instruction No. 2 as in Instruction A. As the former properly covered this phase [597] of the insanity defense, the refusal of the latter was proper. State v. Biswell, 352 Mo. 698, 179 SW 2d 61; and State v. Harris, (Mo. Sup.), 177 SW 362.

Defendant had the burden of sustaining his insanity defense. State v. Murphy, 338 Mo. 291, 90 SW 2d 103. See also State v. Hardy, 359 Mo. 1169, 225 SW 2d 693. However, defendant claimed that Instruction No. 2, the insanity instruction given by the court, improperly “placed upon him the burden of proving his innocence in spite of the presumption of innocence.” There is no merit in this contention. The presumption was properly covered in both Instructions Nos. 2 and 3. Instruction No. 2 and other instructions clearly placed the burden of proof of defendant’s guilt on. the state. As to the extent of the state’s burden: Instruction No. 2 required “to a moral certainty and beyond a reasonable doubt,” Instruction No, 1, “beyond a reasonable doubt” and Instruction No. 3, “to your satisfaction and beyond a reasonable doubt. ’ ’ See State v. Graves, 352 Mo. 1102, 182 SW 2d 46. The instruction^ must be read together, State v. Sapp, 356 Mo. 705, 203 SW 2d 425.

Defendant next contended that Instruction No. 2 placed upon him an undue burden by requiring him to show his insanity to the “satisfaction” or “reasonable satisfaction” of the jury; and that these terms required a degree of proof beyond the preponderance or greater weight of the evidence. This instruction was:

“The court instructs the-jury that if you find and believe from the evidence that the defendant at the time of the commission of the act charged in the-information, if you should find and believe beyond a reasonable doubt from the evidence herein that he did commit such act, was so perverted, deranged, defective, or deficient, in one or more of his mental and moral faculties as to cause him to be incapable at the time, of understanding that such act was wrong and in violation of the law of God and of society, you should acquit him upon the ground of insanity, but to hold the defendant criminally responsible it is only necessary that you should be satisfied from all the evidence that he had sufficient mental capacity to distinguish between right and wrong as to the particular act charged against him, and if you believe that the defendant, at the fime of the commission of the act charged against him, if you find and believe he did commit such act, had such a degree of mental capacity as to enable him to distinguish between right and wrong in reference to said act and to know that said act was criminal and wrong and would deserve punishment, then in law he had a criminal intent and was not so insane, mentally defective, or deficient as to-be exempt from the responsibilities of such act.

‘ ‘ The law does not excuse unless the mental derangement or impairment is so great that it actually renders the person incapable at the time of its commission of distinguishing between right and wrong as to the particular act proved against such person. To establish the insanity of the defendant, positive and direct proof of it is not required. To entitle him to an acquittal by reason of his insanity, circumstantial evidence which, reasonably satisfies your mind of its existence is sufficient.

“As the law presumes the defendant innocent, the burden of proving him guilty rests with the state, and before you should convict him, his guilt must be established to a moral certainty and beyond a ■reasonable doubt. On the other hand, to entitle the defendant to a verdict of not guilty, solely by reason of his insanity, the law requires him to prove it, not, however, beyond a reasonable doubt, but only to your reasonable satisfaction. * * . *” (Italics ours.)

The instruction thus once required “satisfaction” and twice “reasonable satisfaction,” but did not require either such satisfaction to be “by the preponderance, or by the greater weight of the evidence.” It was our first impression that defendant’s objection was without merit. We have heretofore stated, (or'approved instructions stating) defendant’s burden as expressed in this instruction. See, for example, the following: State v. Privitt, 175 Mo. 207, 75 SW 457, and State v. Murrell, (Mo. Sup.) 169 SW 2d 409 (“satisfactorily shown”); State v. Church, 199 [598] Mo. 605, 98 SW 16 (“reasonable satisfaction”); and State v. Palmer, 161 Mo. 152, 61 SW 651 (“reasonably satisfies your minds”). In State v. Barbata, 336 Mo. 362, 80 SW 2d 865, and State v. Duestrow, 137 Mo. 44, 38 SW 554, we approved insanity instructions in which, as in -the instant case, defendant’s burden was “not ® *' * beyond a reasonable doubt, but only to your reasonable satisfaction.” So, the trial judge’s action in giving Instruction No. 2 was supported by ample authority.

On the other hand, this court has also approved instructions making defendant’s measure of proof satisfaction, or reasonable satisfaction, “by the preponderance or greater weight of the evidence.” State v. Scott, 359 Mo. 631, 223 SW 2d 453; State v. Sapp, supra; State v. Douglas, 312 Mo. 373, 278 SW 1016; State v. Porter, 213 Mo. 43, 111 SW 529; State v. Barker, 216 Mo. 532, 115 SW 1102; and State v. Murphy, 338 Mo. 291, 90 SW 2d 103, and cases cited-therein. See also State v. Davis, 342 Mo. 594, 116 SW 2d 110. In State v. Coats, 174 Mo. 396, 74 SW 864, though one instruction required the defendant to prove -his insanity defense to the jury’s “reasonable satisfaction, ’ ’ another required proof - of that issue to its ‘ ‘ reasonable satisfaction by the weight or preponderance of the evidence-. ’ ’

In State v. Murphy, supra, we referred to Sec. 4049, Mo. RS 1939, and Mo. RSA. This is the statute requiring a jury acquitting a defendant solely because of insanity to further find if he is still insane (and if so that he be further dealt with according to law). ‘‘ Obviously this statute is incompatible with the theory that the jury may acquit when they entertain only a reasonable doubt as to the sanity of the accused. * * * We conclude, therefore, that the burden was on the appellant to prove his insanity by'a preponderance of the evidence as, or at least like, an affirmative defense.”

Determination of the present “satisfaction” issue was not involved in any of these cases. We are now required to determine whether the principles announced in these two series of decisions are substantially the same and, if not, which of the two parallel lines of authority should prevail. Does the omission of “by the preponderance or greater weight of the evidence” increase the defendant’s burden of proof of his insanity defense? Are these words a qualification, or limitation upon the extent, of the degree of “satisfaction” or “reasonable satisfaction”?

We have concluded that the jury’s “satisfaction” or “reasonable satisfaction” alone is not the proper measure of defendant’s burden. The decisions in other jurisdictions as to quantum of proof of insanity in criminal cases are not uniform. See Wharton’s Crim. Evid., 11th Ed., Vol. 2, Secs. 895 if.; and Annos., 39 LRA 737, and 44 LRA(NS) 119. In State v. Clark, 34 Wash. 485, 76 P. 98, 101 Am. St. Rep. 1066, the different standards were analyzed, and the preponderance of the evidence rule was adopted. And, generally, courts have ruled that instructions placing upon the defendant a greater burden as to the defense of insanity than proof by a preponderance of the evidence are erroneous. 23 CJS, p. 784. And see State v. Austin, 71 Ohio St. 317, 73 NE 218, 104 Am. St. Rep. 778.

Where the requirement of the jury’s satisfaction or reasonable satisfaction is not involved (i. e. not coupled with the preponderance or greater weight requirement), and in the same or other instructions the state’s burden of defendant’s guilt is fixed as that of beyond a reasonable doubt, the quantum of a defendant’s proof of his insanity is usually that of preponderance or greater weight. Wharton, Crim. Evid., 11th Ed., Vol. 2, Sec. 897, and State v. Hauser, 101 Ohio St. 404, 131 NE 66. See State v. Gatlin, 208 S. C. 414, 38 SE 2d 238. (But see State v. Calkins, 63 Idaho 314, 120 P. 2d 253, disapproving an instruction requiring proof of insanity by a preponderance as exacting of the defendant more than the creation' of a reasonable doubt.)

Generally, “an instruction is erroneous if it requires that a defensive matter be proved to the satisfaction of the jury. ” 53 Am. Jur. p. 569. (But see State v. Swink, 229 N. C. 123, 47 SE 2d 852, an insanity ease, approving “satisfaction” but disapproving [599] “clearly satisfied.”) In State v. Lynch, 130 N. J. L. 253, 32 A. 2d 183, it was said that the satisfaction of the jury may be shown by “preponderance of proof.” In Barker v. State, 188 Ga. 332, 4 SE 2d 31, “reasonable satisfaction * * * by the preponderance” was approved.

‘ ‘ The quantum of evidence to establish insanity made necessary by this instruction is substantially greater than a preponderance. It is not sufficient, according to this instruction, that the fact of insanity be made probable; something more than that is required; the jury must be ‘satisfied’ that it existed. To satisfy the mind, according to the common notion of mankind, is to free it from doubt, to set it at rest. This is the primary meaning of the word, according to all the lexicographers, when used in this connection. To accomplish this result — -‘to satisfy’ a body of men of the truth of a disputed fact— requires much more than a preponderance of the evidence. Clear and convincing evidence must.be adduced in its favor.” Kelch v. State, 55 Ohio St. 146, 45 NE 6, 39 LRA 737.

Under a statute requiring insanity to be “proved to a reasonable satisfaction of the jury” (1940 Ala. Code, Tit. 15, Sec. 422) omission of the word “reasonable” was held erroneous as exacting of the accused “too high a degree of proof.” James v. State, 167 Ala. 14, 52 So. 840. In Thomas v. State, 207 Ala. 244, 92 So. 244, of “satisfaction by the preponderance of the testimony,’’ the court said: “To require ‘satisfaction,’ this court has frequently held, is to require something more than ‘reasonable satisfaction’ as the statute prescribes.” In Grissom v. State, 33 Ala. App. 23, 30 So. 2d 19, the Alabama rule was said to be that the defendant must establish this defense “by g preponderance of the evidence to the satisfaction of the jury.” (Italics ours.) (But see Boyle v. State, 229 Ala. 212, 154 So. 575, and Grammer v. State, 239 Ala. 633, 196 So. 268.)

Self-defense was involved in Commonwealth v. Colandro, 231 Pa. 343, 80 A. 571. There the court said that,' while it was proper to require this defense to be shown to the satisfaction of the jury, ‘ ‘ * * * the learned trial judge should have added that they would only have to be satisfied by the fair preponderance of the evidence.” In another case involving self-defense, it was said that “to ‘satisfy’ the mind” meant that “the evidence must be such as to remove all reasonable doubt. ’ ’. But, added the court: ‘ ‘ Even if the language employed does not necessarily require proof beyond a reasonable doubt, it is quite evident that it does impose upon the defendant the necessity of establishing his defense by something more than the preponderance of the evidence. So that if it should occur that the jury believed that the defense was supported by the weight of the evidence, but yet they were not satisfied of any of the necessary facts, it would be their duty, under this instruction, to find against the defendant on that issue. This is not the law, and we hardly see how the instruction could have failed to prejudice the defendant’s case.” Foley v. State, 11 Wyo. 464, 72 P. 627. And in Ragland v. State, 238 Ala. 587, 192 So. 498, involving an alibi defense, it was said that the phrase, “ ‘to the reasonable satisfaction of the jury’ is the apt and well understood measure of proof to sustain an affirmative cause of action or defense in’ civil actions; the measure of proof required of one carrying the burden to establish his cause of action or defense by the preponderance of the evidence. It is illogical to apply this phrase where only a reasonable doubt is to be raised by the evidence.” (Italics' ours.) See also State v. Brooks, 101 Utah 584, 126 P. 2d 1044.

“Satisfaction” or “reasonable satisfaction” is generally approved when used in connection with the state’s burden. In State v. Graves, 352 Mo. 1102, 182 SW 2d 46, this court approved an instruction requiring the state to show defendant’s guilt “to your satisfaction and beyond a reasonable doubt.” We there said that Seago v. N. Y. C. R. Co., 349 Mo. 1249, 164 SW 2d 336, 147 ALR 372, “held that ‘satisfy’ means to set the mind at rest or to convince, which is too strong an expression to use in defining the burden of proof by a preponderance of the evidence.” [600] We ruled that the instruction did not change the state’s .'burden of proof to a degree of mental conviction less than belief beyond a reasonable doubt, and noted that “ ‘satisfied beyond a reasonable doubt’ has been approved in a criminal case,” citing Boyd v. Commonwealth, 156 Va. 934, 157 SE 546. In McCormack v. State, 133 Ala. 202, 32 So. 268, proof of the state’s case to the satisfaction of the jury was said to be favorable to the defendant in that it exacted of the state “too high a degree of proof ” That court observed: “Before it can be said that the mind is satisfied of the truth of a proposition, it must be relieved of all doubt or uncertainty.” (But in Thayer v. State, 138 Ala. 39, 35 So. 406, the same court sustained refusal of defendant’s proffered instructions that if not “entirely satisfied” of defendant’s guilt,.they should acquit him, and defining beyond a reasonable doubt as to be “wholly satisfied or satisfied to a moral certainty.” The court felt that this exacted too high a degree of proof of the state. See also Best v. State, 155 Ind. 47, 57 NE 534.)

“Beyond a reasonable doubt” has been held to mean “fully satisfied,” “entirely convinced,” “satisfied to a moral certainty”; and “to the satisfaction of the jury” has been construed to mean “such as satisfies the jury of the truth of the matter” and “the jury alone is the judge of its satisfaction.” State v. Harris, 223 N. C. 697, 28 SE 2d 232. And in Commonwealth v. Barrish, 297 Pa. 160, 146 A. 553, the court said of “satisfaction of the jury”: “This and ‘preponderance’ are the customary words used in balancing the evidence of the Commonwealth and the defendant as relating to alibi; they do not mean ‘satisfy’ or ‘preponderate’ beyond a doubt.”

United Dentists, Inc. v. Commonwealth, 162 Va. 347, 173 SE 508, did not involve a criminal prosecution and the burden upon the state was proof only by a preponderance. Refusal of defendants’ instructions, making the state’s burden the “satisfaction?’ of the jury, was approved. Quoting from Webster’s New International Dictionary, the court stated: “‘To satisfy’ means ‘to.free from doubt, suspense, or uncertainty; to give assurance to; to set at rest the mind of.’ ” '

This court has often criticised instructions in civil eases requiring proof to the satisfaction of the jury. Our criticism was based upon the belief that the requirement of “satisfaction” increased the burden of proof. In Randolph v. Supreme Liberty Life Ins. Co., 359 Mo. 251, 221 SW 2d 155, we approved refusal of a. proffered instruction containing the clause “to the satisfaction of the jury,” saying, “this was reason enough for refusing it.” In Johnson v. Dawidoff, 352 Mo. 343, 177 SW 2d 467, we noted the trend of our decisions and expressed the view that this court would sustain the action of a trial court in granting a new trial because of an instruction requiring proof by the greater weight or preponderance of the evidence to the jury’s satisfaction or reasonable satisfaction. In Pulse v. Jones, (Mo. Sup.), 218 SW 2d 553, we observed that omission of “reasonable” would be reversible error. See also Seago v. N. Y. C. R. Co., 349 Mo. 1249, 164 SW 2d 336, 147 ALR 372; In re Jacobs’ Estate, 238 Mo. App. 833, 188 SW 2d 956; Ramsey v. Parks, (Mo. App.) 179 SW 2d 481; .and Ritzheimer v. Marshall, (Mo. App.) 168 SW 2d 159. See 53 Am. Jur. pp. 577, 578, and Anno. 147 ALR 380.

Most persuasive are the rulings and the reasoning: in State v. Murphy and State v. Graves, supra, in the majority of the criminal cases of other jurisdictions, and in the civil cases decided by the appellate courts of this state. We are convinced that the measure of proof required for an insanity defense in a criminal case is the preponderance or greater weight of the evidence; and that the. sole requirement of the jury’s satisfaction, or reasonable satisfaction imposes upon him a higher degree of proof than that of the preponderance or greater weight of the evidence. In this ease, therefore, we follow the second line of authority described above, and rule that the first series of decisions are no longer controlling.

(It is our view that instructions defining the quantum of proof necessary to support such defense should omit all references [601] "to the jury’s satisfaction” or "reasonable satisfaction.” We realize that the propriety of coupling these terms with "the preponderance or greater weight of the evidence” is not for determination in this case, but believe that this expression of opinion may be helpful to trial judges and members of the bar.)

Because of our conclusions as to Instruction No. 2, the judgment is reversed and the cause is remanded for new trial.

PER CURIAM: — The foregoing opinion by Lozier, C., is adopted as the opinion of the Court en Banc.

Hyde, G. J., Ellison, Gonhling, and Tipton, JJ., concur in result and in separate opinion of Hollingsworth, J.; Leedy, J., dissents and concurs in separate opinion of Dalton, J.; Dalton, J., dissents in separate opinion filed; Hollingsworth, J., concurs in the result in separate opinion filed.