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APRIL 18, 1984




Mary Alice Taylor was tried for murder and convicted in the Circuit Court of Washington County, Mississippi, from which she was sentenced to serve a life term in the custody of the Mississippi Department of Corrections.

The following two assignments of error were made by the appellant:

 (1) The trial court erred when it excluded the proffered testimony of Dr. Gilbert S. Macvaugh, Jr., and Dr. Richard B. Sayner, on the state of mind of the appellant at the time of the commission of the crime; and

 (2) The sentencing of the appellant to life imprisonment was pursuant to an unconstitutional mandatory punishment statute.

 It is undisputed that on July 24, 1981, fourteen year old Mary Alice Taylor shot and killed Mrs. Maple Markham. The story of Mary Taylor's life was put before the jury in detail, and is encompassed by the record here. Only a part of that story will be repeated in this opinion.

 Mary, an unwed teenaged mother, arrived in Greenwood,

 Mississippi, with her infant son on October 15, 1980. As she was unable to properly care for the child, the Leflore County Court, acting ex parte, and without notice to the appellant, temporarily placed the child in the custody of the Leflore County Welfare Department. On December 21, 1980, Mrs. Maple Markham came to the lodgings of Mary Taylor and took the child from her custody. So began the relationship between these two that has led us to this place.

 The baby was placed in a foster home, but Mary Taylor did have visitations with the baby which were arranged for her by Mrs. Markham, as the case worker assigned to the case. These visits were terminated on February 24, 1981, when the County Court made permanent the original temporary order of removal. After that Mary continued to ask Markham to let her visit her baby son, even after March, when Mary learned that she was again pregnant. These visitation requests were denied by Mrs. Markham, and the relationship between the two women seriously deteriorated.

 Mary Taylor made her last effort to talk Mrs. Markham into letting her visit her child on the day of July 19, 1981. Mary went to Markham's office and stayed for over three hours, seeking a visit with her first born. Her efforts were fruitless. Finally, Markham offered to drive Mary home. While in the automobile, Markham told Mary that not only could she not visit her child, but that as soon as the baby Mary was then carrying was born, that baby, too, would be removed from Mary's custody. At this point, Mary Taylor took a pistol from her purse and shot Mrs. Markham to death.

 At the trial, appellant attempted to introduce the testimony of the two psychologists who would have testified that, because of Mary Taylor's emotional background, she was unable to form the malice necessary to a murder charge, and therefore could be guilty of no more than manslaughter. This testimony was not allowed before the jury, and the trial court instructed the jury both as to manslaughter and as to murder. In this posture the case went to the jury and the jury found Mary Taylor guilty of murder. Mary Taylor was then sentenced to life in the custody of the Department of Corrections. The first assignment of error urges that the exclusion of the testimony of the psychologists on the appellant's state of mind deprived the jury of critical factual evidence that was relevant to show that, because of her state of mind, Mary Taylor's crime could not have been murder, but was manslaughter.

 Manslaughter is defined by Mississippi Code Annotated 97-3-35 (1972), as follows:

 The killing of a human being without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.

 Murder must be committed with malice aforethought; manslaughter has no such requirement. Hammock v. State, 379 So. 2d 323, 328 (Miss. 1980); Clingon v. State, 293 So. 2d 823, 827 (Miss. 1974); Carter v. State, 199 Miss. 871, 25 So. 2d 470 (1946).

 Murder is defined by Mississippi Code Annotated 97-3-19 (Supp. 1983). The statute does not separate the crime of murder into degrees as some jurisdictions do. It does, however, make a distinction between murder and capital murder. The criteria for this distinction are such things as the position in society occupied by the victim, i.e. a police officer, or the manner of the killing, i.e. by use of an explosive device.

 Those jurisdictions that separate murder into first degree and second degree use totally different criteria than that used in Mississippi. Traditionally, premeditation and deliberation are required for first degree murder as opposed to second degree murder. Such a distinction by degree is non-existent in Mississippi. Here the distinction is not one of degree, but the difference is between murder and manslaughter.

 We are asked whether or not expert testimony may be introduced to show, as a partial defense, a defendant's abnormal mental state somewhat less than the complete defense of insanity, in order to reduce the charge from murder to manslaughter. Those few jurisdictions which have addressed this question have not answered it uniformly. One writer has noted,

 The general rule appears to be that insanity, when interposed as a defense in a criminal prosecution, is either a complete defense or none at all. A claim of insanity cannot be used for the purpose of reducing a crime from murder in the first degree to murder in the second degree or from murder to manslaughter, nor can partial insanity

 serve to diminish the full measure of criminal responsibility for an act of homicide. However, in some jurisdictions the fact that one who committed a homicide was temporarily insane when he formed and executed the design to kill may, under the penal codes, be taken into consideration in determining the degree of the murder and in fixing the penalty for the offense.

 40 Am. Jur. 2d Homicide, 114, p. 409 (1968). However, the writer continues,

 A number of jurisdictions, following a doctrine of diminished or partial responsibility, recognize that mental inadequacies or defects not amounting to legal insanity may be shown in defense to a homicide prosecution, as tending to show the diminished capacity of the accused to have entertained a specific mental state, such as malice aforethought, deliberation, or premeditation.

 40 Am. Jur. 2d Homicide, 115, p. 410 (1968).

 Seven jurisdictions have reached the issue of the admissibility of evidence on the defendant's ability to formulate malice aforethought, thereby reducing the charge from murder to manslaughter. Two jurisdictions have excluded the evidence and five jurisdictions have held that evidence of a defendant's partial insanity is admissible. Three of the five are distinguishable for present purposes, and therefore the existing authorities appear to be evenly divided.

 Evidence of a defendant's state of mind, in a second degree murder case, was found to be admissible in the case of Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972). There the Pennsylvania Supreme Court was asked to decide" whether psychiatric evidence is admissible in a murder prosecution for the limited purpose of determining whether a defendant acted in the heat of passion. "Id., at 384, 292 A.2d at 287. Before reaching its decision, the Court noted that," [t]he ultimate test for adequate provocation [to reduce the crime charged from murder to manslaughter] remains whether a reasonable man, confronted with [a] series of events, became impassioned to the extent that his mind was `incapable of cool reflection.\rquote "Id., at 389-90, 292 A.2d at 290. Then, the court rephrased the" ultimate test "to say that the" relevant inquiry is threefold: did the defendant actually act in the heat of passion when he committed the homicide; did

 the provocation directly lead to the slaying of the person responsible for the provocation; and was there insufficient `cooling time' thus preventing a reasonable man from using his `reasoning facilities' and `capacity to reflect.

 Id. at 391, 292 A.2d at 291.

 The Pennsylvania court found the evidence to be both relevant and probative. Stating that psychiatric evidence is regularly admitted to prove the complete defense of insanity, under the McNaughten test, the court said,

 It would indeed be anamolous to receive psychiatric evidence - as our courts do to establish the complete defense of insanity but at the same time reject psychiatric ...

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