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I. PERSONS NON COMPOTES MENTIS.

§ 32. BOTH the legal and the psychological relations of persons of unsound mind are discussed at large in another work,' to which the reader is referred as containing on these topics an exposition fuller than is permitted by the limits of the present chapter. At present it is proposed to do no more than to give a brief synopsis of the practical points which the decisions of the courts, as exhibited at large in the fuller treatise to which reference is made, may be considered as establishing.

Old
English

insanity

tive.

At the outset, it should be observed that the introduction of compulsory confinement for parties acquitted of guilt on ground of insanity has, to some extent, altered the issue rulings on which the older text writers and judges discussed. no longer Under the old practice, if the defendant were convicted, authorita- he was punished as if he were a perfect moral agent; and if he were acquitted, he was suffered to run at large, though the acquittal was on the ground of a monomania which would impel him to commit the same act the very next day. Under the present practice both these alternatives may be avoided, and the jury, by acquitting on the specific ground of insanity, may insure the sequestration of the defendant from society until the sanity be cured. This change of policy should always be kept in view when comparing the older with the later cases. Under the old law the dangers ensuing from an acquittal on the ground of insanity made courts reluctant to accept insanity as the ground for an acquittal. Under the present law these dangers are much diminished, as such acquittal no longer involves the setting at large a dangerous lunatic. To this, as well as to the growing force of humane interest in the insane, we may attribute the more lenient attitude toward this defence which judges have lately assumed. The old rulings, so far as they are attributable to the then policy of the law, are no longer binding.

Irresponsi

deter

§ 33. It will not be here attempted to lay down any general definition of insanity as constituting a defence in criminal bility to be trials. It is proposed simply to enumerate the several cases in which this defence, in any of its phases, has been sustained by the courts, not as conferring irresponsibility for crime, but, according to the present practice, as constituting such a state of facts as to remove the defendant from the category of sane to that of insane transgressors.

mined by exclusion rather

than by inclusion.

1 Whart. & St. Med. Jur. (4th ed.) vol. i. 2 108 et seq.

dom of will

necessary

to responsibility.

To responsibility (imputability) there are, we must remember, two constituents: (1) capacity of intellectual discrimina- Intellect tion; and (2) freedom of will. If there be either in- and freecapacity to distinguish between right and wrong as to the particular act, or delusion as to the act, or inability to do or refrain from doing the act, then there is no responsibility. The difficulty is practical. No matter what may be our speculative views as to the existence of conscience, or of freedom of action, we are obliged, when we determine responsibility, to affirm both.1 The practical tests of capacity will be considered in the following sections.

1. Incapacity to distinguish between Right and Wrong.

Party incapable of

determin

§ 34. Wherever idiocy or amentia, or general mania, is shown to exist, the court will direct an acquittal; and if a jury should convict in the teeth of such instructions, the court will set the verdict aside. While the earlier cases lean to the position that such depravation of understanding must be general, it is now conceded that it is enough if it is shown to have existed in reference to the particular

act.2

1

ing as to right or

wrong of

act is irresponsible.

A series of interesting papers on insanity will be found in the proceedings of the New York Med.-Legal Soc., N. Y. 1872.

21 Inst. 247; Bac. Abr. Idiot; Co.

The controversy which divides chanisms, and the latter a mere theologians as well as metaphysicians mechanism of necessities. as to the freedom of the will is not involved in the discussion in the text. It may be possible that, from a speculative point of vision, all acts are necessitated. With this, however, jurisprudence, which is a practical Litt. 247 a; 1 Russell on Cr., by science, has nothing to do. There have been indeed leading jurists, such as Feuerbach, who have adopted the principle of necessity as a basis, and have invoked the fear of punishment as a counterweight to the temptation to crime; and Mr. Bain, as is elsewhere shown, has accepted the same view. See Whart. & St. Med. Jur. ?? 188, 540. But this, as is well said by a leading German author (Meyer, 25), takes not only from jurisprudence, but from life, its moral dignity, making the former a mere marshalling of meVOL. I.-4

Greaves, 13; 1 Hawk. c. 1, s. 3; 4 Bla. Com. 24; Collinson on Lunacy, 573, 673 (n); R. v. Oxford, 9 C. & P. 525 ; Burrow's Case, 1 Lewin, 238; R. v. Goode, 7 Ad. & El. 536; 67 Hans. Par. Deb. 728; Bowler's Case, Hadfield's Case, Ibid. 480; 27 How. St. Tr. 1282; R. v. Barton, 3 Cox C. C. 275; R. v. Offord, 5 C. & P. 168; R. v. Higginson, 1 C. & K. 129; R. v. Stokes, 3 C. & K. 185: R. v. Layton, 4 Cox C. C. 149; R. v. Vaughan, 1 Cox C. C. 80; U. S. v. Shults, 6 McLean, 121, 1852; Com. v. Rogers, 7 Metc. 500, 1843; 7 Law 49

§ 35. To this effect is the answer of the fifteen judges of England to the questions propounded to them by the House of Lords in June, 1843. "The jury," they said, "ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that, to establish a defence on the ground of insanity, it must be clearly proved that at the time of committing the act the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong.'

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In this country, whatever may have been the hesitancy as to the enunciation of other propositions to be hereafter stated, there has been none as to this. There has scarcely been a case where the defence of insanity has been taken, in which the jury have not been told that if the defendant was unable "to distinguish right from wrong," or to discern "that he was doing a wrong act," or was "incapable of knowing what he was about," or was "deprived of his understanding and memory," or was "incompetent mentally to know what is wrong as distinguished from what is right," he is irresponsible. And it has been further properly held that when idiocy

Rep. 449; State v. Richards, 39 Conn. 591, 1872; Freeman v. People, 4 Denio, 9, 1847; Flanagan v. People, 52 N. Y. 467, 1873; People v. Sprague, 2 Park. Cr. Rep. 43, 1855; People v. O'Connell, 62 How. N. Y. Pr. 436, 1881; State v. Spencer, 1 Zab. (21 N. J. L.) 196, 1847; Com. v. Mosler, 4 Barr, 264, 1846; Com. v. Farkin, 3 Penn. L. J. 480, 1844, 2 Clark, 208; Brown v. Com., 78 Pa. 122, 1875; State v. Gardiner, Wright's Ohio R. 392, 1833; Vance v. Com., 2 Va. Cas. 132, 1818; Dejarnette v. Com., 75 Va. 867, 1819; McAllister v. State, 17 Ala. 434, 1849; People v. Ferris, 55 Cal. 588, 1879; Dove v. State, 3 Heisk. 348, 1872; Stuart v. People, 1 Baxter, 178, 1867; State v. Redemeier, 8 Mo. App. 1; s. c. 71 Mo. 173, 1880; Hart v. State, 14 Nebr. 572, 1883; Clark v. State, 8 Tex. App. 350, 1880; Pettigrew v. State, 12

Tex. App. 225, 1882; U. S. v. Ridgeway, 31 Fed. Rep. 144, 1887.

1 Car. & Kir. 134, 1845; 8 Scott N. R. 595. See R. v. Layton, 4 Cox C. C. 149, 1850; R. v. Barton, 3 Cox C. C. 275, 1849; 1 Bennett & Heard Lead. Cases, 942, 1849; R. v. Davies, 1 F. & F. 69, 1858; R. v. Watson, R. v. Edmunds, cited 1 Whart. & St. Med. Jur. ? 166; State v. Huting, 21 Mo. 464, 1855; Dunn v. People, 109 Ill. 635, 1884; Giebel v. State, 28 Tex. App. 151, 1889.

2

See, more particularly, U. S. v. Shults, 6 McLean C. C. R. 121, 1852; U. S. v. Clarke, 2 Cranch C. C. R. 158, 1824; State v. Lawrence, 57 Me. 574, 1869; Com. v. Rogers, 7 Metc. 500, 1843; Com. v. Heath, 11 Gray, 303, 1858; Freeman v. People, 4 Denio, 9, 1847; Willis v. People, 32 N. Y. 715, 1865; People v. Sprague, 2 Park. Cr.

or semi-idiocy is proved, it is for the prosecution to etsablish affirmatively a capacity on the part of the defendant to distinguish right from wrong."

1

The New York Penal Code of 1882 provides as follows:

"A person is not excused from criminal liability as an idiot, imbecile, lunatic, or insane person, except upon proof that at the time of committing the alleged criminal act he was laboring under such a defect of reason as either, 1, not to know the nature and quality of the act he was doing; or 2, not to know that the act was wrong." It will be observed that this is an affirmation of the doctrine of the English judges above given.

§ 36. "Wrong," in the sense in which the term is here used,

Rep. 43, 1853; Com. v. Mosler, 4 Barr, 264, 1846; Com. v. Farkin, 3 Penn. L. J. 480, 1844, 2 Clark, 208; Vance v. Com, 2 Va. Cas. 132, 1818; Choice v. State, 31 Ga. 424, 1861; Anderson v. State, 42 Ga. 9, 1871; McAllister v. State, 17 Ala. 434, 1849; State v. Huting, 21 Mo. 464, 1855; State v. Erb, 74 Mo. 190, 1881; State v. Katoosky, 74 Mo. 247, 1881; People v. Coffmann, 24 Cal. 230, 1863.

of, and which, by her own account, had been renewed at the time of the act of homicide (although they were not such as would lead to it); these facts were held by Erle, J., to be evidence from which a jury might properly find that she was not in such a state of mind at the time of the act as to know its nature or be accountable for it. R. v. Law, 2 F. & F. 836, 1861. So where a married woman, fondly attached to her children, and apparently most happy in her family, had poisoned two of them with some evidence of deliberation and design, it was left to the jury by Wightman, J., as circumstances from which insanity could be inferred, that it appeared that there was insanity in her family; and that her demeanor before and after the act, although not wholly irrational, was strangely erratic and excited; and that from recent antecedents, and the presence of certain exciting causes of insanity, and her own account of her sensations, the medical men were of opinion that she was laboring under actual cerebral disease, and that she was in a paroxysm of insanity at the time of the act. R. v. Vyse, 3 F. & F. 247, 1862.

It is in England that the right and wrong test is applied with the most exclusive rigor; and it is in England that attempts at its formal expansion have been most stoutly resisted. See 1 Whart. & St. Med. Jur. 119. Yet, in deciding what is the amount of evidence necessary to prove incapacity to determine between right and wrong, the English judges have practically let in constructions almost as indulgent as those which have led American courts to expand the formal definition of insanity. Thus a married woman having killed her husband immediately after an apparent recovery from a disease (the result of childbirth) which caused a great loss of blood, and exhausted the vessels of the brain, and thus weakened its power, and so tended to produce insane delusions of 1 State v. Richardson, 39 Conn. 591, the senses, which, while suffering 1872. under such disease, she complained

means

moral wrong.

means moral wrong. A man may want the capacity to distinguish between the various shades of illegality which the law "Wrong" assigns to a particular act. This is no defence. If, however, he was "laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing wrong," he is held to be irresponsible on the ground of insanity. And whatever we may think of the second of these alternatives, the first (that in italics) is broad enough to sustain a verdict of insanity in all cases in which the defendant's mental condition was such as to preclude him from having knowledge of the nature and character of the act.2

Delusion

excuses

act done bona fide

out malice

under its

effects.

2. Insane Delusion.

§ 37. The answer of the English judges on the special topic of delusion is as follows: "The answer must of course depend on the nature of the delusion: but making the same assumption as we did before, namely, that he labors under and with such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example: if under the influence of his delusion he supposes another man to be in the act of attempting to take away his, life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.3 To the same effect speaks Chief Justice Shaw: "Monomania may operate as an excuse for a criminal act," when "the delusion is such that the person under its influence has a real and firm belief of some fact, not true in itself, but which, if it were true, would excuse his act; as where the belief is that the party killed had an immediate design upon his life, and under that belief the insane man kills in supposed self-defence. A common instance is where he fully believes

1 See Sir J. F. Stephen's testimony s. c. 10 Crim. Law Mag. 885, 1888; before House of Commons, quoted in Anderson v. State, 25 Nebr. 550, 1889. Whart. on Hom. 573; Parsons v. 2 See 2 Steph. Hist. Crim. Law, 166. State, 9 Crim. Law Mag. 812, 1887; U. S. v. Faulkner, 35 Fed. Rep. 730;

3

People v. Taylor, 138 N. Y. 398, 1893.

* Com. v. Rogers, 7 Metc. 500, 1844.

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