State v. McMullin

¶1A jury found defendant Harry Lee McMullin guilty of stealing. Defense was insanity. The court sentenced him as an habitual criminal to 15 years in prison.

¶2On this appeal defendant does not challenge the evidence of stealing. He had pled insanity and now briefs two points: Improper instruction on insanity, and overruling his objection to a hypothetical question.

¶3Defendant’s evidence by two psychiatrists was that he had a mental disease that prevented him from knowing the nature of his actions.1

¶4One of the doctors testified defendant had said he’d been drinking. At the close of the evidence on the state’s motion the court ordered stricken the testimony about defendant being drunk at the time of the offense.

¶5As said, defendant now contends the court erred by giving Instruction MAI-CR 2.32 defining mental disease. This, by erroneously adding the prescribed but optional parenthetical phrase “(except alcoholism without psychosis)”.2 Note on Use 2. to the instruction declares this phrase should be omitted unless the evidence justifies it. There was no evidence of intoxication to be considered by the jury. The challenged instruction authorized the jury to do just that. This was reversible error.

¶6Defendant’s second point concerns the challenged hypothetical question. We need *617not rule on this; it probably will not arise on re-trial.

¶7Reversed and remanded.