BRIGHT, Circuit Judge.
The appellant, an Indian resident of the Rosebud Indian Reservation in South Dakota, was convicted of voluntary manslaughter in a trial before a jury for the March 26, 1967, slaying of Theodore Lawrence Black Wolf. The incident occurred within the boundaries of the reservation and federal jurisdiction is conferred through 18 U.S.C. § 1153.
Briefly stated, the evidence is as follows: On the night of the killing, Vincent Iyotte learned that his younger brother, Leroy Iyotte, had been injured in a fight with James Knife, an Indian with a history of antagonism toward the Iyotte family. Vincent Iyotte and another brother, Sylvester Iyotte, armed themselves with rifles and set out to avenge the beating. They found Knife with several other Indians near the bank of the White River which runs through the reservation. The Iyottes left their car on the highway and, rifles in hand and calling out for James Knife, began to walk towards the group on the river bank. At this point, Theodore Black Wolf, a companion of James Knife, took a tire iron from a pickup truck and, according to the testimony of the defendant, charged at Iyottes and managed to strike Vincent Iyotte on the head with the iron. Vincent Iyotte fired five shots, hitting the victim Black Wolf twice in the chest. One bullet, immediately fatal in effect, lacerated the heart and severed the aorta and another penetrated into the lung. Still another bullet entered and exited the body below the right rib cage causing a minor wound.
The appellant and Sylvester Iyotte were indicted on April 28, 1967, for first degree murder in violation of 18 U.S.C. §§ 1153, 1111, 2. Sylvester Iyotte was tried subsequent to the appellant and was acquitted. The appellant was tried before a jury in the District Court for the District of South Dakota and was found guilty of the lesser-included charge of voluntary manslaughter.
Vincent Iyotte raises two issues on appeal of this conviction. First, he contends that his conviction should be set aside, as a matter of law, because the government did not sustain the burden of proof that he was sane at the time of the incident. Dr. Richard B. Leander, a qualified psychiatrist called by the defense, testified on the basis of his psychiatric examination of Vincent Iyotte that Vincent Iyotte was of below normal intelligence, and that, considering Vincent Iyotte had been drinking on the night of the killing, he probably would not be able to distinguish right from wrong as to a particular act.
Where the evidence tends to establish the insanity or mental incompetency of the defendant, the burden of proof is on the government to show be
yond a reasonable doubt the defendant’s sanity or mental competency to commit the offense. Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895); Kaufman v. United States, 350 F.2d 408 (8th Cir. 1965), cert. denied, 383 U.S. 951, 86 S.Ct. 1211, 16 L.Ed.2d 212 (1966); Hurt v. United States, 327 F.2d 978 (8th Cir. 1964); Dusky v. United States, 295 F.2d 743 (8th Cir. 1961), cert. denied, 368 U.S. 998, 82 S.Ct. 625, 7 L.Ed.2d 536 (1962).
In an attempt to carry its burden of proof, the government, in rebuttal, called Dr. Robert J. Murney, a clinical psychologist, and Dr. H. Wayne Glotfelty, a qualified psychiatrist, both associated with the Federal Medical Center at Springfield, Missouri, to which the defendant had been committed for examination. Dr. Murney explained the nature of the tests administered to the defendant during his stay at the Center and, among other things, evaluated Vincent lyotte’s intelligence level by a series of tests. Vincent Iyotte scored poorly on tests relying on language ability as a measure of intelligence and such tests indicated mild mental retardation. Performance tests, on which Dr. Murney relied as being a more accurate measure of intelligence for people who have been deprived of educational advantages, showed that Vincent Iyotte was of low average to average intelligence. Various test results were submitted to Dr. Glotfelty. Dr. Glotfelty testified, on the basis of intelligence, psychological and other tests and his own examination of appellant, that Vincent Iyotte knew the difference between right and wrong at the time of the incident. On cross-examination, Dr. Glotfelty stated that he could not be absolutely sure of his opinion since he was not positive of the effects of the blow allegedly received by Vincent Iyotte in the altercation with Black Wolf.
Dr. Glotfelty’s uncertainty on
cross-examination related to the assessment of non-psychiatric elements in the hypothetical question; viz., how hard was the blow and what was the effect thereof? In such a hypothetical question, the jury must determine the validity of the facts or premise used to test the expert on cross-examination. The hypothetical question asked Dr. Glotfelty to assume non-psychiatric facts with which a jury might or might not agree. The expert’s failure to express an opinion thereon does not, as a matter of law, destroy his professional opinion given on direct-examination that appellant Vincent Iyotte knew the difference between right and wrong and realized and appreciated the nature and consequences of his acts. See Washington v. United States, 390 F.2d 444 (D.C.Cir.1967).
We feel that the government carried its burden. Although the matter of sanity or insanity is often little more than a subject of speculation, albeit expert speculation, the evidence in this case afforded the jury adequate ground for believing the defendant to be sane at the time of the incident. The defendant urges to the contrary because of Dr. Glotfelty’s inability to be
absolutely
sure of the defendant’s condition. Although we might wish that the matter could be stated in absolutes, experience indicates that it cannot be and that the medical testimony as to sanity or insanity is an opinion as to probabilities and nothing more. Mason v. United States, 402 F.2d 732 (8th Cir. 1968); United States v. Wilson, 399 F.2d 459 (4th Cir. 1968); Beardslee v. United States, 387 F.2d 280, 295 (8th Cir. 1967); Brock v. United States, 387 F.2d 254 (5th Cir. 1967); Dusky v. United States, supra; Jones v. United States, 109 U.S.App.D.C. 111, 284 F.2d 245 (1960), cert. denied, 365 U.S. 851, 81 S.Ct. 816, 5 L.Ed.2d 816 (1961).
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BRIGHT, Circuit Judge.
The appellant, an Indian resident of the Rosebud Indian Reservation in South Dakota, was convicted of voluntary manslaughter in a trial before a jury for the March 26, 1967, slaying of Theodore Lawrence Black Wolf. The incident occurred within the boundaries of the reservation and federal jurisdiction is conferred through 18 U.S.C. § 1153.
Briefly stated, the evidence is as follows: On the night of the killing, Vincent Iyotte learned that his younger brother, Leroy Iyotte, had been injured in a fight with James Knife, an Indian with a history of antagonism toward the Iyotte family. Vincent Iyotte and another brother, Sylvester Iyotte, armed themselves with rifles and set out to avenge the beating. They found Knife with several other Indians near the bank of the White River which runs through the reservation. The Iyottes left their car on the highway and, rifles in hand and calling out for James Knife, began to walk towards the group on the river bank. At this point, Theodore Black Wolf, a companion of James Knife, took a tire iron from a pickup truck and, according to the testimony of the defendant, charged at Iyottes and managed to strike Vincent Iyotte on the head with the iron. Vincent Iyotte fired five shots, hitting the victim Black Wolf twice in the chest. One bullet, immediately fatal in effect, lacerated the heart and severed the aorta and another penetrated into the lung. Still another bullet entered and exited the body below the right rib cage causing a minor wound.
The appellant and Sylvester Iyotte were indicted on April 28, 1967, for first degree murder in violation of 18 U.S.C. §§ 1153, 1111, 2. Sylvester Iyotte was tried subsequent to the appellant and was acquitted. The appellant was tried before a jury in the District Court for the District of South Dakota and was found guilty of the lesser-included charge of voluntary manslaughter.
Vincent Iyotte raises two issues on appeal of this conviction. First, he contends that his conviction should be set aside, as a matter of law, because the government did not sustain the burden of proof that he was sane at the time of the incident. Dr. Richard B. Leander, a qualified psychiatrist called by the defense, testified on the basis of his psychiatric examination of Vincent Iyotte that Vincent Iyotte was of below normal intelligence, and that, considering Vincent Iyotte had been drinking on the night of the killing, he probably would not be able to distinguish right from wrong as to a particular act.
Where the evidence tends to establish the insanity or mental incompetency of the defendant, the burden of proof is on the government to show be
yond a reasonable doubt the defendant’s sanity or mental competency to commit the offense. Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895); Kaufman v. United States, 350 F.2d 408 (8th Cir. 1965), cert. denied, 383 U.S. 951, 86 S.Ct. 1211, 16 L.Ed.2d 212 (1966); Hurt v. United States, 327 F.2d 978 (8th Cir. 1964); Dusky v. United States, 295 F.2d 743 (8th Cir. 1961), cert. denied, 368 U.S. 998, 82 S.Ct. 625, 7 L.Ed.2d 536 (1962).
In an attempt to carry its burden of proof, the government, in rebuttal, called Dr. Robert J. Murney, a clinical psychologist, and Dr. H. Wayne Glotfelty, a qualified psychiatrist, both associated with the Federal Medical Center at Springfield, Missouri, to which the defendant had been committed for examination. Dr. Murney explained the nature of the tests administered to the defendant during his stay at the Center and, among other things, evaluated Vincent lyotte’s intelligence level by a series of tests. Vincent Iyotte scored poorly on tests relying on language ability as a measure of intelligence and such tests indicated mild mental retardation. Performance tests, on which Dr. Murney relied as being a more accurate measure of intelligence for people who have been deprived of educational advantages, showed that Vincent Iyotte was of low average to average intelligence. Various test results were submitted to Dr. Glotfelty. Dr. Glotfelty testified, on the basis of intelligence, psychological and other tests and his own examination of appellant, that Vincent Iyotte knew the difference between right and wrong at the time of the incident. On cross-examination, Dr. Glotfelty stated that he could not be absolutely sure of his opinion since he was not positive of the effects of the blow allegedly received by Vincent Iyotte in the altercation with Black Wolf.
Dr. Glotfelty’s uncertainty on
cross-examination related to the assessment of non-psychiatric elements in the hypothetical question; viz., how hard was the blow and what was the effect thereof? In such a hypothetical question, the jury must determine the validity of the facts or premise used to test the expert on cross-examination. The hypothetical question asked Dr. Glotfelty to assume non-psychiatric facts with which a jury might or might not agree. The expert’s failure to express an opinion thereon does not, as a matter of law, destroy his professional opinion given on direct-examination that appellant Vincent Iyotte knew the difference between right and wrong and realized and appreciated the nature and consequences of his acts. See Washington v. United States, 390 F.2d 444 (D.C.Cir.1967).
We feel that the government carried its burden. Although the matter of sanity or insanity is often little more than a subject of speculation, albeit expert speculation, the evidence in this case afforded the jury adequate ground for believing the defendant to be sane at the time of the incident. The defendant urges to the contrary because of Dr. Glotfelty’s inability to be
absolutely
sure of the defendant’s condition. Although we might wish that the matter could be stated in absolutes, experience indicates that it cannot be and that the medical testimony as to sanity or insanity is an opinion as to probabilities and nothing more. Mason v. United States, 402 F.2d 732 (8th Cir. 1968); United States v. Wilson, 399 F.2d 459 (4th Cir. 1968); Beardslee v. United States, 387 F.2d 280, 295 (8th Cir. 1967); Brock v. United States, 387 F.2d 254 (5th Cir. 1967); Dusky v. United States, supra; Jones v. United States, 109 U.S.App.D.C. 111, 284 F.2d 245 (1960), cert. denied, 365 U.S. 851, 81 S.Ct. 816, 5 L.Ed.2d 816 (1961).
The appellant further argues that the trial court should have found, as a matter of law, that the killing was in self-defense and that a judgment of acquittal should have been entered. The evidence indicates that Vincent Iyotte, armed with a rifle, had sought out James Knife after Knife had beaten Vincent Iyotte’s younger brother. Black Wolf came to the defense of Knife and was killed in the effort. Vincent Iyotte claims that he did not intend to kill James Knife, that he communicated withdrawal from the entire affair to Black Wolf and further that Black Wolf had knocked him to the ground and was standing over him with the upraised tire iron. Only then was the fatal shot fired. It was properly the province of the jury to believe or disbelieve these claims and, in so doing, the jury had the right to consider the testimony of Dr. W. O. Brown, a qualified pathologist who performed an autopsy on the victim and found that Black Wolf had sustained a blow to the head and was probably unconscious at the time the fatal shot was fired.
On a review of the record as a whole, we are satisfied that the jury’s finding is not contrary to, and is supported by, the evidence. Accordingly, the judgment of conviction is affirmed.