Opinion of the Court
ROBERT E. Quinn, Chief Judge:
At a rehearing the accused was convicted of assault with intent to inflict grievous bodily harm and robbery. A board of review affirmed the findings on the robbery charge, but reduced the assault charge to assault with a dangerous weapon. It also reduced the period of confinement from six to five years. We granted further review to determine whether the accused was prejudiced as to the robbery charge by the law officer’s instructions on insanity.
It is undisputed that the accused committed the offenses for which he was convicted. At the trial, however, a sharp conflict developed as to the circumstances of the crimes. For our purposes, we need only relate some of the evidence relied upon by the accused.
After an evening in town, the accused returned' to the base in the company of a friend. On arrival, they went to the friend’s barracks. The accused testified that he was then solicited for a homosexual act. He summarily rejected the advance, and immediately proceeded to his own barracks. En route, he found an iron furnace shaker handle.. He picked it up. Continuing to his quarters, he passed the orderly room and noticed the Charge of Quarters asleep on a cot. Allegedly, the screen door at the entrance was open. The accused entered, walked over to the cot, and savagely beat the Charge of Quarters with the furnace handle. When the victim was smashed into unconsciousness, the accused stopped. He turned on a light and saw what he had done. He then looked around and noticed the Charge of Quarters’ wallet on one of the desks. He took it and left the room. Outside he threw away the iron handle. Then seeing an Air Policeman he ran to his own barracks and hid under it. Later, he proceeded to his [710]*710sleeping bay, hid his bloody clothes behind a ventilator, and went to bed. Shortly afterward he was apprehended.
Psychiatric testimony indicates that the accused is a latent schizophrenic. According to the defense doctors, however, a person in that mental state can entertain the specific intent required for the offenses charged “just as any other of us might be able to do.” All the doctors agreed that the accused was able to distinguish right from wrong. Disagreement arose over the accused’s ability to adhere to the right.
The prosecution psychiatrist, Captain R. Zaitlin, Chief of Psychiatry, U. S. Air Force, Maxwell Air Force Base, Alabama, testified that the accused was capable of adhering to the right. Two defense psychiatrists, Dr. F. L. Dunn, former Chief of Psychiatry at Maxwell Field Air Force Base, and Dr. L. C. Scheinberg, former Chief, of Neuro-psychiatry at Barksdale Air Force Base, Louisiana, were of the opinion that, if the accused had not forced the orderly room door, he was “probably” suffering from an acute psychotic episode during the assault on the Charge of Quarters. This episode was precipitated by the traumatic experience of the homosexual solicitation. The defense doctors also agreed that during the psychotic state the accused acted from irresistible impulse. However, both doctors further agreed that the episode ended with the assault, and did not encompass the theft of the wallet. The following excerpts from the record summarize their testimony in this connection:
Dr. Dunn’s Testimony
“Q. Then you do not contend that he had an irresistible impulse to steal or to rob?
A. I do not feel so.
“Q. All right, doctor. Now, let me just go over once again: Your testimony, in the strongest light available to the defense, is that the accused, probably, was in a psychotic state at the time of the alleged offenses on the morning of 1 September 1951. Is that correct?
A. That is correct, if you can be more specific with the alleged offenses —just from the standpoint of the actual beating of the individual.
“Q. Yes, not with the taking of the wallet.
A. All right. I do not feel that he was psychotic at that time.”
Dr. Scheinb erg’s Testimony
“Q. Would you try to answer yes or not [sic] if you can. In your opinion did the accused have any irresistible impulse to commit larceny or robbery on the morning of 1 September 1951?
A. I don’t feel that he had an irresistible impulse to commit larceny or robbery. It’s also — it is possible —now I offer this as conjecture for your own consideration — that the wallet was taken to cover up for the homosexual act because I think that in the minds of most people one would rather be accused of being a petty thief than being accused of homosexuality. It is possible that the wallet was taken as a second thought to cover up for his homosexual attack on this man.”
The accused testified in his own behalf. In referring to his conduct after the assault, he said:
“Q. You felt that you had to get out of Turner Air Force Base, out of Albany. Is that correct? Is that what you would have done?
A. Yes, sir.
“Q. And you took this $23.00 — ■ the money out of Sergeant Haney’s wallet to aid you in your escape. Is that right?
A. Yes, sir.
“Q. You knew what you had done was wrong, didn’t you?
A. Yes, sir.
“Q. What did you do?
A. I was excited and frightened [711]*711and I wanted to escape apprehension, and I left, taking his wallet.
“Q. Would you tell the court what your reason was for taking the wallet.
A. To escape, sir. To get as far away as I possibly could.
“Q. You thought you might need money for that purpose, is that right?
A. Yes, sir. The more money I had the further away I could get.”
The law officer gave general instructions on the effect of legal insanity. He did not instruct the court that it could consider the evidence of the accused’s mental condition for the purpose of determining whether the accused was capable of entertaining the specific intent required for robbery. Defense counsel did not request further instructions, and he made no objection to the instructions as given. The accused now contends that he was prejudiced by the law officer’s failure to give the more particularized instruction.
Mental impairment has two consequences as far as responsibility for crime is concerned. First, if it is of a sufficient degree to prevent the accused from knowing right from wrong or from adhering to the right, it will exonerate him completely from criminal responsibility for his conduct. Second, if it is of a lesser degree, it will not absolve him from all responsibility, but it may negative the existence of a particular element of the crime so as to reduce it to a lesser offense.
A general instruction on mental deficiency as a basis for complete exoneration does not suffice to inform the court-martial members of the “important principle that mental impairment, less than legal insanity, might be considered” in determining the degree of the offense committed by the accused. United States v. Kunak, 5 USCMA 346, 362, 17 CMR, 346.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion of the Court
ROBERT E. Quinn, Chief Judge:
At a rehearing the accused was convicted of assault with intent to inflict grievous bodily harm and robbery. A board of review affirmed the findings on the robbery charge, but reduced the assault charge to assault with a dangerous weapon. It also reduced the period of confinement from six to five years. We granted further review to determine whether the accused was prejudiced as to the robbery charge by the law officer’s instructions on insanity.
It is undisputed that the accused committed the offenses for which he was convicted. At the trial, however, a sharp conflict developed as to the circumstances of the crimes. For our purposes, we need only relate some of the evidence relied upon by the accused.
After an evening in town, the accused returned' to the base in the company of a friend. On arrival, they went to the friend’s barracks. The accused testified that he was then solicited for a homosexual act. He summarily rejected the advance, and immediately proceeded to his own barracks. En route, he found an iron furnace shaker handle.. He picked it up. Continuing to his quarters, he passed the orderly room and noticed the Charge of Quarters asleep on a cot. Allegedly, the screen door at the entrance was open. The accused entered, walked over to the cot, and savagely beat the Charge of Quarters with the furnace handle. When the victim was smashed into unconsciousness, the accused stopped. He turned on a light and saw what he had done. He then looked around and noticed the Charge of Quarters’ wallet on one of the desks. He took it and left the room. Outside he threw away the iron handle. Then seeing an Air Policeman he ran to his own barracks and hid under it. Later, he proceeded to his [710]*710sleeping bay, hid his bloody clothes behind a ventilator, and went to bed. Shortly afterward he was apprehended.
Psychiatric testimony indicates that the accused is a latent schizophrenic. According to the defense doctors, however, a person in that mental state can entertain the specific intent required for the offenses charged “just as any other of us might be able to do.” All the doctors agreed that the accused was able to distinguish right from wrong. Disagreement arose over the accused’s ability to adhere to the right.
The prosecution psychiatrist, Captain R. Zaitlin, Chief of Psychiatry, U. S. Air Force, Maxwell Air Force Base, Alabama, testified that the accused was capable of adhering to the right. Two defense psychiatrists, Dr. F. L. Dunn, former Chief of Psychiatry at Maxwell Field Air Force Base, and Dr. L. C. Scheinberg, former Chief, of Neuro-psychiatry at Barksdale Air Force Base, Louisiana, were of the opinion that, if the accused had not forced the orderly room door, he was “probably” suffering from an acute psychotic episode during the assault on the Charge of Quarters. This episode was precipitated by the traumatic experience of the homosexual solicitation. The defense doctors also agreed that during the psychotic state the accused acted from irresistible impulse. However, both doctors further agreed that the episode ended with the assault, and did not encompass the theft of the wallet. The following excerpts from the record summarize their testimony in this connection:
Dr. Dunn’s Testimony
“Q. Then you do not contend that he had an irresistible impulse to steal or to rob?
A. I do not feel so.
“Q. All right, doctor. Now, let me just go over once again: Your testimony, in the strongest light available to the defense, is that the accused, probably, was in a psychotic state at the time of the alleged offenses on the morning of 1 September 1951. Is that correct?
A. That is correct, if you can be more specific with the alleged offenses —just from the standpoint of the actual beating of the individual.
“Q. Yes, not with the taking of the wallet.
A. All right. I do not feel that he was psychotic at that time.”
Dr. Scheinb erg’s Testimony
“Q. Would you try to answer yes or not [sic] if you can. In your opinion did the accused have any irresistible impulse to commit larceny or robbery on the morning of 1 September 1951?
A. I don’t feel that he had an irresistible impulse to commit larceny or robbery. It’s also — it is possible —now I offer this as conjecture for your own consideration — that the wallet was taken to cover up for the homosexual act because I think that in the minds of most people one would rather be accused of being a petty thief than being accused of homosexuality. It is possible that the wallet was taken as a second thought to cover up for his homosexual attack on this man.”
The accused testified in his own behalf. In referring to his conduct after the assault, he said:
“Q. You felt that you had to get out of Turner Air Force Base, out of Albany. Is that correct? Is that what you would have done?
A. Yes, sir.
“Q. And you took this $23.00 — ■ the money out of Sergeant Haney’s wallet to aid you in your escape. Is that right?
A. Yes, sir.
“Q. You knew what you had done was wrong, didn’t you?
A. Yes, sir.
“Q. What did you do?
A. I was excited and frightened [711]*711and I wanted to escape apprehension, and I left, taking his wallet.
“Q. Would you tell the court what your reason was for taking the wallet.
A. To escape, sir. To get as far away as I possibly could.
“Q. You thought you might need money for that purpose, is that right?
A. Yes, sir. The more money I had the further away I could get.”
The law officer gave general instructions on the effect of legal insanity. He did not instruct the court that it could consider the evidence of the accused’s mental condition for the purpose of determining whether the accused was capable of entertaining the specific intent required for robbery. Defense counsel did not request further instructions, and he made no objection to the instructions as given. The accused now contends that he was prejudiced by the law officer’s failure to give the more particularized instruction.
Mental impairment has two consequences as far as responsibility for crime is concerned. First, if it is of a sufficient degree to prevent the accused from knowing right from wrong or from adhering to the right, it will exonerate him completely from criminal responsibility for his conduct. Second, if it is of a lesser degree, it will not absolve him from all responsibility, but it may negative the existence of a particular element of the crime so as to reduce it to a lesser offense.
A general instruction on mental deficiency as a basis for complete exoneration does not suffice to inform the court-martial members of the “important principle that mental impairment, less than legal insanity, might be considered” in determining the degree of the offense committed by the accused. United States v. Kunak, 5 USCMA 346, 362, 17 CMR, 346. When appropriate, therefore, the law officer must instruct not only on the general effect of legal insanity but on the more narrow effect that the accused’s mental responsibility might have on the specific intent required for the offense charged. The general rule was stated in United States v. Higgins, 4 USCMA 143, 148, 15 CMR 143, as follows:
“. . . It would seem to follow that if an accused person produces evidence of an underlying mental state, which might have served to affect his intent at the time of the acts alleged, then the law officer should advise the court that its members may properly consider the evidence of mental condition in determining the accused’s capacity to entertain premeditation, intent, or knowledge — ■ when any of these is relevant to an offense charged.”
Ordinarily, mental deficiency, less than legal insanity, will reduce the crime to a lesser offense re- quiring no specific state of mind. See United States v. Kunak, supra. Robbery, however, is a compound of two separate offenses. United States v. Calhoun, 5 USCMA 428, 18 CMR 52. One is assault. This requires no specific intent and, consequently, mental impairment short of legal insanity will not absolve the accused of criminal responsibility. The second separate offense included in a robbery charge is larceny. This requires a specific intent. Therefore, the accused’s mental condition may affect his capacity to entertain the required intent. Moreover, in a prosecution for larceny, a proper instruction on the effect of partial mental deficiency has even greater practical consequences. Military law does not punish as an offense an unlawful taking which is not accompanied by a specific intent. United States v. Norris, 2 USCMA 236, 8 CMR 36. Consequently, if the court were to find that the accused’s mental condition prevented his entertaining a specific intent, its finding would exonerate the accused of all criminal responsibility, rather than simply reducing the crime charged to a lesser offense. Thus, if the effect of partial mental impairment was reasonably raised as an issue, it was important to the accused that the court be correctly instructed.
[712]*712An analysis of the evidence of the accused’s mental condition indicates a sharply-defined division in- to two parts. One part re- lates to the accused’s assault on the Charge of Quarters. The second is concerned with the larceny. According to the defense doctors, the first was the result of a psychotic episode. But, in connection with the second, they both agreed that the accused had recovered from that state immediately after the assault, and was then fully able to understand right from wrong and to adhere to the right. Moreover, they each agreed that in the absence of an actual psychotic episode, the accused was completely capable of entertaining the specific intent to steal. It is readily apparent, therefore, that the evidence of accused’s mental impairment reasonably raised an issue only with regard to the assault part of the robbery charge. No question whatever was raised regarding mental deficiency affecting the specific intent required for larceny. In fact, the inescapable conclusion which must be drawn from the evidence is that the accused was fully able to, and did actually, entertain an intent permanently to deprive his victim of his wallet. The accused’s testimony amounts to a judicial confession of larceny, and clearly shows his mental responsibility for that act.
On the basis of the evidence, an instruction as to the effect of the accused’s mental condition was required only as to the assault. None was required as to the larceny. The law officer did not differentiate between the two offenses, but his failure to do so did not harm the accused.
If the law officer had properly limited his instructions, the court could have considered the evidence of insanity in connection with only one of the two ingredients constituting the crime of robbery. Instead it was permitted to apply the evidence to both offenses. Hence, if the court had determined that the accused could not adhere to the right when he committed the assault, it was authorized, under the instructions, to return a finding of not guilty of the entire charge. This was more than the accused was entitled to on the evidence. He had judicially admitted his guilt of larceny; and the evidence shows that when he committed that offense he had no mental deficiency which could affect his capacity to entertain the required intent. In the light of this evidence, it is doubtful that the court would have been willing to completely acquit the accused. See United States v. Calhoun, supra. The court, however, was not restricted to a choice of complete acquittal or complete guilt. It had been instructed that larceny was a lesser included offense and that a finding of guilty could be returned thereon. This instruction eliminates any possibility that the accused’s judicial confession of larceny influenced the court to give less than full consideration to his defense of insanity with regard to the assault. The accused, therefore, was not prejudiced by the law officer’s instructions.
The decision of the board of review is affirmed.
Judge BROSman concurs.