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(a) “ Irrepressible impulse” is not “moral insanity,” supposing

moral insanity” to consist of insanity of the moral sys“ Irresistible im- tem, coexisting with mental sanity. “Moral insanity," pulse” to be dis

as thus defined, has no support, as will hereafter be tinguished seen, either in psychology or law. from " moral in- (6) Nor is “irresistible impulse” convertible with passanity," and from sionate propensity or jealousy, no matter how strong, in “passion."

persons not insane.2 § 44. In other words, the “irresistible impulse” of the lunatic,

which confers irresponsibility, is essentially distinct from Insane irresistible the passion, however violent, of the sane, which does not impulse a defence.

confer irresponsibility. And when it is shown that a

party charged with crime committed the crime under an insane irresistible impulse, then he is entitled to a verdict of insanity.*

i See this discussed in Whart. & St. ings.” Scott v. Com., 4 Metc. 227, Med. Jur. 137.

1842. See, also, Smith v. Com., 1 ? State v. Pike, 49 N. H. 399, 1849; Duv. 224, 1864; Kriel v. Com., 5 Bush, Freeman v. People, 4 Denio, 5, 1847; 362, 1869; Hopps v. People, 31 Ill. Guetig v. State, 66 Ind. 94, 1879; State 385, 1862. To the same effect is the v. Strickley, 41 Iowa, 232, 1875. See judgment of the Court of Common 1 Whart. & St. Med. Jur. 144.

Pleas of Philadelphia, in 1868; Com. 3 Williams v. State, 50 Ark. 511, v. Haskell, 2 Brewster, 491, 1868 (see, 1888. See 1 Whart. & St. Med. Jur. also, Com. v. Freeth, 5 Clark, Pa. L. J. & 144; Com. v. Rogers, 7 Metc. 500, R. 455, 1855 ; of the Supreme Court 1843; Sir J. F. Stephen's Eng. Crim. of Indiana, in 1869; Stevens v. State, Law, p. 91, and Ibid., Digest, art. 27; 31 Ind. 485, 1869 (see Bradley v. State, opin. of Chief Justice Gibson, of Penn- 31 Ind. 492); of Iowa, in 1868; State sylvania, 4 Barr, 266, 1846. This was v. Felter, 25 Iowa, 67, 1868; of Illireaffirmed in Coyle v. Com., 100 Pa. nois, in 1866; Hopps v. People, 31 Ill. 573, 1882. To the same effect, see 385, 1862; and of the Supreme Court People v. Sprague, 2 Park. C. R. 43, of the United States, in 1872; Life Ins. 1855; and rulings by Judge Ellis Co. v. Terry, 15 Wall. 580, 1872. The Lewis, cited in Lewis Cr. Law, 404; doctrine, however, was emphatically by Judge Edmunds (2 Am. Jour. of repudiated in North Carolina, in 1861. Ins.); by Judge Whiting (Freeman's State v. Brandon, 8 Jones, 463, 1860. Trial-Pamph.); and by the Supreme In conformity with the text may Court of Georgia (Roberts v. State, 3 be cited a case in which Judge Story Ga. 310, 1847).

decided that a young woman, who in In 1862, the text with the cases a violent impulse in puerperal fever given in it was cited with approval by threw her child overboard, though at the Supreme Court of Kentucky; and the time perfectly conscious of the while irresistible impulse, as a distinct enormity of the act, was entitled to an line of defence, was recognized, it was acquittal. U. S. v. Hewson, 7 Law held that, to sustain it, “it must be Rep. 361, 1844. known to exist in such violence as to 4 R. v. Oxford, 9 C. & P. 523, at pp. render it impossible for the party to 545-6, 1840; Plake v. State, 121 Ind. do otherwise than yield to its prompt- 433, 1890.


$ 45. In the enunciation of this conclusion there should be the strictest caution, and in the application of it the most jealous scrutiny. And in connection with it, it is always requisite as important to keep in mind the impressive language of to this deLord Brougham, when discussing the question before the House of Lords: “With respect to the point of a person being an accountable being, that was an accountable being to the law of the land, a great confusion had pervaded the minds of some persons whom he was indisposed to call reasoners, who considered accountability in its moral sense as mixing itself up with the only kind of accountableness with which they, as human legislators, had to do, or of which they could take cognizance. He could conceive of the case of a human being of a weakly constituted mind, who might by long brooding over real or fancied wrongs work up so perverted a feeling of hatred against an individual that danger might occur. He might not be deluded as to the actual existence of injuries he had received, but he might grievously and grossly exaggerate them, and they might so operate upon a weakly framed mind and intellect as to produce crime. He could conceive that the Maker of that man, in His infinite mercy, having regard to the object of His creation, might deem him not an object for punishment. But that man was accountable to human tribunals in a totally different sense. . . . He could conceive a person whom the Deity might not deem accountable, but who might be perfectly accountable to human laws.” 1

The conclusion we must reach, therefore, is, that an irresistible homicidal impulse in an insane person is a good defence, though such insane person was able to distinguish between right and wrong. . With a sane person, however, it is not a defence, as the law makes all sane persons responsible for their impulses. But mere intellec

1 Hans. Par. Deb. lxvii. 728. In Pa. 593, 1882; Dejarnette v. Com., 75 the speech as reported by Hansard, Va. 869, 1880; State v. Stickley, 41 Lord Brougham bases the distinction Iowa, 232, 1875; State v. Mewherter, in the text on the Preventive theory 46 Iowa, 85, 1877; Wright v. People, of punishability, heretofore discussed. 4 Nebr. 407, 1875; Hart v. State, 14 This, however, is not essential to the Nebr. 572, 1883; Cunningham v. State, validity of his conclusion.

56 Miss. 269, 1879; People v. M'Don? See, as substantiating this conclu- ell, 47 Cal. 134, 1869; People v. Horn, sion, Flanagan v. People, 52 N. Y. 467, 62 Cal. 120, 1882; and authorities cited 1873; Walker v. People, 88 N. Y. 81, under next section. Cf. Com. v. Tay1882; State v. Spencer, (1 Zab.) 21 lor, 41 Leg. Int. 488, 1884. N.J. L. 196, 1847; Coyle v. Com., 100 In Blackburn v. State, 23 Ohio, 165

tual power to plan and premeditate does not constitute sanity.' There may be such power, and yet, from an incapacity to form a right view of the relations of the act, the party may be insane.?

As insane persons, in the sense just stated, may be mentioned, persons afflicted with idiocy or amentia, the former being congenital, the latter consisting of a loss of mental power ;3 and mania.

Moral in


4. “Moral Insanity.$ 46. “Moral insanity,” in its distinctive technical sense, is a

supposed insanity of the moral system coexisting with sanity no mental sanity. It is therefore to be distinguished from

'insane irresistible impulse,” which has just been noticed, in two respects : (1) “ Irresistible impulse” is only a valid defence when the party offering it is mentally deranged, while in “moral insanity,” by its very terms, the patient is always mentally sane; and (2) “Irresistible impulse” is a special propensity impelling to a particular bad act, while in “moral insanity" he is impelled to all sorts of badness. It is enough for the present to say that, as is abundantly shown elsewhere, the position that “moral insanity," as thus defined, exists, is now almost without a defender among specialists in mental diseases. That it is repudiated by the courts of England and of the United States there is

(decided in 1872), the proper ques- ing his mind, from controlling his own tions to be submitted to the jury were conduct, unless the absence of the declared to be: “Was the accused a power of control has been caused by free agent in forming the purpose to his own default.” 1 Steph. Hist. Crim. kill? Was he at the time capable of Law 168; Williams v. State, 50 Ark. judging whether that act was right or 511, 1888; People v. Foy, 138 N. Y. wrong? And did he know at the time 664, 1893. that it was an offence against the laws | Bennett v. State, (Wis.) 4 Crim. of God and man?

Law Mag. 378. See the statement on this point by 2 1 Whart. & St. Med. J. % 531-537. Cockburn, C. J., given in the Appen- 3 R. v. Shaw, L. R. 1 C. C. 145, 1866; dix to the Report of the Committee of R. v. Southey, 4 F. & F. 864, 1864; the House of Commons on the Homi- Vance v. Com., 2 Va. Cas. 132, 1819; cide Amendment Bill. See, also, Willis McAllister v. State, 17 Ala. 434, 1849. v. People, 5 Parker C. R. 620, 1860; • U. S. v. Hewson, 7 Law Rep. and also Andrew's Case, 1 Whart. & 361, 1844. St. Med. Jur. 162.

5 See 28 Alb. L. J. 40. I have dis“No act is a crime if the person cussed this question in a note to Guiwho does it is, at the time when it is teau's Case, 10 Fed. Rep. 161 et seq., done, prevented either by defective 1882. mental power, or by any disease affect- 61 Whart. & St. Med. J.82 531-537.

an almost unbroken current of authority to show. Carefully and conscientiously has the defence, by a vast number of independent courts, been scanned ; and in almost every instance the conclusion is that the theory on which it rests is without support either in jurisprudence or psychology.

5. Mental Disturbance as lowering Grade of Guilt. $ 47. The old common law authorities took the ground that sanity and insanity are states as clearly and absolutely distinguishable as are coverture and non-coverture; and Mental that men are either wholly sane, so as to be wholly responsible, or wholly insane, so as to be wholly irre- disprove sponsible. This principle, however, is now abandoned as based on a psychological untruth. There are many degrees both of sanity and insanity; and the two states approach each other in

ance ad missible to


| R. v. Oxford, 9 C. & P. 525, 1840; cited U. S. v. Schults, 6 McLean, 121, R. v. Barton, 3 Cox C. C. 275, 1850 ; 1852; U. S. v. Holmes, 1 Clifford, 98, R. v. Higginson, 1 C. & K. 129, 1845; 1858; U.S. v. Guiteau, 1 Mackey, 498, R. v. Layton, 4 Cox C. C. 149, 1851 ; 10 Fed. Rep: 161, 1882; State v. LawR. v. Hayne, 1 F. & F. 666, 1859; R. rence, 57 Me. 574, 1869; Com. v. Rov. Townley, 3 F. & F. 839, 1862; Peo- gers, 7 Metc. 500, 1843; Com. v. Heath, ple v. Kerrigan, 73 Cal. 222, 1887. 11 Gray, 303, 1857; State v. Richards,

Shortly after Townley's Case, on a 39 Conn. 591, 1872; Freeman v. Peotrial for murder, before Erle, J., the ple, 4 Denio, 9, 1847; Flanagan v. defence relied on evidence showing a People, 52 N. Y. 467, 1873; State v. great amount of senseless extrava- Spencer, 21 N.J. L. (1 Zab.) 196, 1847; gance and absurd eccentricity of con- State v. Windsor, 5 Harring. 512, 1847; duct, coupled with habits of excessive Vance v. Com., 2 Va. Cas. 132, 1818; intemperance, causing fits of delirium State v. Brandon, 8 Jones, 463, 1860; tremens, the prisoner, however, not Boswell v. State, 63 Ala. 307, 1879; laboring under the effects of such a Farrer v. State, 2 Ohio St. 54, 1853; fit at the time of the act, and the cir- Finley v. State, 38 Mich. 482, 1878; cumstances showing sense and delib- People v. Coffman, 24 Cal. 230, 1864; eration, and a perfect understanding People v. M'Donell, 47 Cal. 134, 1874; of the nature of the act; it was held, State v. Coleman, 20 S. C. 392, 1882; that the evidence was not sufficient to Choice v. State, 31 Ga. 424, 1861 ; support the defence, as it rather tended Spann v. State, 47 Ga. 553, 1873. to show wilful excesses and extreme These cases, though in various terms, folly than mental incapacity. R. v. unite substantially in declaring, as the Leigh, 4 F. & F. 915, 1864. And see proposition is stated by an able jurist, R. v. Southey, 4 F. & F. 864, 1864; Judge Thurman (Farrer v. State, 2 R. v. Watson, reported in 1 Whart. & Ohio St. 54, 1853), “ that there is no auSt. Med. Jur. & 166; R. v. Edmunds, thority for holding that mere moral Ibid. 167.

insanity, as it is sometimes called, exAs American authorities may be onerates from responsibility.”

imperceptible gradation, melting into each other, to adopt an illustration borrowed by Lord Penzance from Burke, as day melts into night. There may, therefore, be phases of mind which cannot be positively spoken of as either sane or insane. Are persons in one of these phases to be acquitted of crime? If so, they would constitute a class not only dangerous but uncontrollable; for they would not be sane enough to be convicted as felons, and yet would not be insane enough to be confined as lunatics. Are they to be convicted, when charged with offences involving malice and premeditation ? At this justice would revolt, for at the time of the commission of the guilty act the defendant, as it could readily be shown, was not in a condition of mind coolly to premeditate, or accurately to contemplate, a malicious design. Under such circumstances the better course is to find the defendant guilty of the offence in a diminished grade, when the law establishes such grade; or when it does not, to inflict on him modified punishment. Nor is this view inconsistent with the analogies of the law. Such considerations (i. l., those of the defendant's mental constitution) are

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See, also, Flanagan v. People, 52 are discussed. As exhibiting a view N. Y. 467, 1873, where it was said by diverging from the text, see Anderson Andrews, J.:“The argument proceeds v. State, 43 Conn. 514, 1876. upon the theory that there is a form In vindication and fuller elaboraof insanity in which the faculties are tion of the remarks in the text on so disordered and deranged that a moral insanity,” see 1 Whart. & St. man, though he perceives the moral Med. Jur. 8186 et seq. quality of his acts, is unable to control 1 "We use no mere metaphor when them, and is urged by some mysterious we say that the intellect passes through pressure to the commission of acts the innumerable gradations from the full consequences of which he anticipates glow of noonday to the depth of midbut cannot avoid. Whatever medical night. He who attempts to place a or scientific authority there may be for limit to the twilight on either side, atthis view, it has not been accepted by tempting to fix a limit at which reason courts of law.” S.P., People v. M’Don- either suddenly ceases or suddenly beell, 47 Cal. 134, 1874; Cf. R. v. Haynes, gins, is in the quandary of those who 1 F. & F. 666, 1859.

put to the stoical philosophers the A partial exception is to be found question what constitutes a heap of in some eccentric opinions delivered corn, and what a bald head, and who in the Court of Appeals of Kentucky; were brought at last to confess that a opinions, however, which do not ap- single grain made a heap of corn, and pear to have been sustained by a ma- pulling out a single hair made a bald jority of the court in which they were head.” Ideler, Gericht. Psychol. pp. pronounced. Smith v. Com., 1 Duv. 224, 45–51. 1864; St. Louis Mut. Ins. Co. v. Graves, 2 See 1 Whart. & St. Med. Jur. 126, 6 Bush, 268, 1870. See 1 Whart, & St. 181, 200. Med. Jur. 2% 175-8, where these cases

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