whether the prisoner is at that time suffering from a mental disease so as to be a menace to the public safety. If the members of the inquisition find that such person is mentally diseased as aforesaid, then the judge shall order that such person be committed to the state hospital for the insane, to be confined there until he shall have so far recovered from such mental disease as to be no longer a menace to the public safety. If they find that the prisoner is not suffering from mental disease as aforesaid, then he shall be immediately discharged from custody.

EXPERT TESTIMONY BILL

Sec. 1. Summoning of Witnesses by Court. Whenever in the trial of a criminal case the issue of insanity on the part of the defendant is raised, the judge of the trial court may call one or more disinterested qualified experts, not exceeding three, to testify at the trial, and if the judge does so, he shall notify counsel of the witnesses so called, giving their names and addresses. Upon the trial of the case, the witnesses called by the court may be examined regarding their qualifications and their testimony by counsel for the prosecution and defense. Such calling of witnesses by the court shall not preclude the prosecution or defense from calling other expert witnesses at the trial. The witnesses called by the judge shall be allowed such fees as in the discretion of the judge seem just and reasonable, having regard to the services performed by the witnesses. The fees so allowed shall be paid by the county where the indictment was found.

Sec. 2. Written Report by Witnesses. When the issue of insanity has been raised in a criminal case, each expert witness, who has examined or observed the defendant, may prepare a written report regarding the mental condition of the defendant based upon such examination or observation, and such report may be read by the witness at the trial after being duly sworn. The written report prepared by the witness shall be submitted by him to counsel for either party before being read to the jury, if request for this is made to the court by counsel. If the witness presenting the report was called by the prosecution or defense, he may be cross-examined regarding his report by counsel for the other party. If the witness was called by the court, he may be examined regarding his report by counsel for the prosecution and defense.

Sec. 3. Commitment to Hospital for Observation. Whenever in the trial of a criminal case the existence of mental disease on the part of the accused, either at the time of the trial or at the time of the commission

whose duty it is, according to the existing law of the state, to conduct such an inquisition, shall be inserted here. It is not proposed to change the prevailing practice in this respect.

of the alleged wrongful act, becomes an issue in the case, the judge of the court before whom the accused is to be tried or is being tried shall commit the accused to the State Hospital for the Insane, to be detained there for purposes of observation until further order of court. The court shall direct the superintendent of the hospital to permit all the expert witnesses summoned in the case to have free access to the accused for purposes of observation. The court may also direct the chief physician of the hospital to prepare a report regarding the mental condition of the accused. This report may be introduced in evidence at the trial under the oath of said chief physician, who may be cross-examined regarding the report by counsel for both sides.

These bills were discussed editorially in a recent number of the HARVARD LAW REVIEW. The editor expressed approval of them with the exception of the first section of the bill relating to criminal responsibility, which he adversely criticized. At the request of the present writer, the editor-in-chief of the REVIEW kindly gave him this opportunity to reply to these criticisms.

The section criticized reads as follows:

"No person shall hereafter be convicted of any criminal charge when at the time of the act or omission alleged against him he was suffering from mental disease and by reason of such disease he did not have the particular state of mind that must accompany such act or omission in order to constitute the crime charged."

This section was objected to on the following grounds:

I. "It neglects entirely the important and steadily growing class of crimes in which a specific intent is unnecessary." II. "It fails to cover the case of irresistible impulse, where the power of choice is negatived by the mental disorder." III. "The statute, according to its authors, will introduce the doctrine of partial responsibility, i. e. the holding of lunatics for part of their crimes." IV. "It is difficult to see wherein the proposed legislation would materially change the existing legal situation." V. "The previous rules, though less precise, were more complete."

I. The question presented by the first objection is whether the proposed test is limited to crimes which require a specific intent.

It is a fundamental principle of the criminal law that every crime, either common law or statutory, with the exception of public nuisances and breaches of what are commonly described as police

• Vol. 30, p. 179 (December, 1916).

regulations, includes a mental element. This necessary mental element has been variously named. In the familiar maxim it is mens rea." 5 Bracton calls it "voluntas nocendi." Lord Hale speaks of the "will to commit an offense."7 Blackstone calls it "vicious will." 8 Austin uses "criminal knowledge." The terms usually employed are "guilty mind " 10 and "criminal intent," "1 the latter being divided into general intent and specific intent. All of these terms are open to objection. "Mens rea" was said by Stephen, J., in Regina v. Tolson,12 to be confusing and contradictory, because it is used to include so many dissimilar states of mind. On the other hand a recent English writer narrowly defines mens

Actus non facit reum, nisi mens sit rea. Pollock and Maitland state that the original source of this maxim is to be found in the sermons of St. Augustine, where the wording is "Ream linguam non facit nisi mens rea." The maxim later appears in the Leges Henrici as Reum non facit nisi mens rea." Coke states it "Et actus non facit reum nisi mens rea sit." 2 POLLOCK AND MAITLAND, HISTORY OF ENGLISH Law, 474, note.

• "Crimen non contrahitur, nisi nocendi voluntas intercedat.” 2 DE LEGIBUS ANGLIAE (Twiss ed.), 126.

7 "Where there is no will to commit an offence, there can be no transgression." HALE, P. C., ch. 2.

8 "An unwarrantable actjwithout a vicious will is no crime at all." 4 BL. COMM. 21. • "Every crime, therefore, supposes, on the part of the criminal, criminal knowledge or negligence." 3 AUSTIN, JURISPRUDENCE, 326.

10 "The general rule of law is that a person cannot be convicted and punished in a proceeding of a criminal nature, unless it can be shown that he had a guilty mind." Field, J., in Chisholm v. Doulton, 22 Q. B. D. 736, 739 (1889).

"The second element which is essential to constitute a crime is what is called the mens rea: a 'guilty mind."" CHERRY, OUTLINE OF CRIMINAL LAW, 8.

"An act cannot amount to a crime when it is not accompanied by a guilty mind." SHIRLEY, CRIMINAL LAW, 4.

11 "Criminal intent is always essential to the commission of crime." Werner, J., in People v. Molineux, 168 N. Y. 264, 297, 61 N. E. 286 (1901).

"It is, therefore, a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent, without which it cannot exist." BISHOP, NEW CRIMINAL LAW, § 287. Bishop in the same section uses "evil mind."

"It is a sacred principle of criminal jurisprudence that the intention to commit the crime is of the essence of the crime." Turley, J., in Duncan v. State, 7 Humph. (Tenn.) 148, 150 (1846).

"To constitute a criminal act, there must, as a general rule, be a criminal intent." Hoar, J., in Commonwealth v. Presby, 14 Gray (Mass.) 65, 66 (1859).

12

23 Q. B. D. 168, 185 (1889). "The maxim is recognized as a principle of English Law by all authorities, but the real difficulty arises, not as to the universality of its application, but as to its meaning. The 'mens rea' generally means some actively guilty intention. It may, however, be mere negligence, if of a very gross description." CHERRY, OUTLINE OF CRIMINAL LAW, 8.

rea as "knowledge or neglect of available means of knowledge that one's act is, or may be, in contravention of the law of England." 13 "Will," as used by Hale and Blackstone, was probably a translation of the "voluntas" of Bracton and was equivalent to "intention.” 14 "Guilty mind" is objectionable because it suggests moral turpitude. "Criminal intent" is not a satisfactory term to describe the mental element involved in every crime, (1) because, under the classification into general and special, "intent" has different meanings,15 and (2) because the mental element in some crimes is negligence, which is inconsistent with the idea of "intent." All these terms have a common fault in seeming to imply that the mental state involved in crimes is a constant quantity, whereas, as is well known, it varies in different crimes. The malice aforethought of murder is different from the animus furandi of larceny, and this differs from the negligence required for involuntary manslaughter and the intent to burn necessary for arson. Some writers avoid the difficulty of giving a definite name to the mental element of crimes by saying that a certain state of mind is involved in the definition of every crime.16 If then the section under discussion had simply said "state of mind" instead of "particular state of mind" no question as to its scope could possibly be raised - it would clearly cover every offense which includes any mental element. The question then is, whether the addition of the word "particular" has a narrowing effect. The word was used in its ordinary meaning of "pertaining

13 STROUD, MENS REA, 20. Another definition is the following: "The mens rea, or guilty mind, of which the law speaks, is that mental state in which the actor, voluntarily doing an act, is conscious of the existence of facts, from which it follows as a matter of law that the thing done by him is an infraction of a duty or prohibition." G. A. Endlich, "The Doctrine of Mens Rea," 13 CRIMINAL LAW MAGAZINE, 831, 834. 14 "It is not, however, a 'will' in Austin's sense of that word; but is closely akin to, and includes, his 'Intention.'" KENNY, OUTLINES OF CRIMINAL LAW, 3715 "The general intent . . . is an intention to do the act done. The specific intent is some independent mental element which must accompany the physical act in order that the crime in question may be committed." BEALE, CRIMINAL PLEADING AND PRACTICE, § 136.

...

"Intent [to kill] is defined as a steady resolve and deep-rooted purpose or design formed after carefully considering the consequences." Clark, J., in State v. Conly, 130 N. C. 683, 687, 41 S. E. 534 (1902).

16 "The full definition of every crime contains expressly or by implication a proposition as to a state of mind." Stephen, J., in Reg. v. Tolson, 23 Q. B. D. 168, 187 (1889). "The state of mind which accompanies an act is often of legal consequence as forming an ingredient necessary for the attachment of certain consequences." I WIGMORE, EVIDENCE, § 242.

to a single thing," the idea being to limit the inquiry to the mental element involved in the crime charged and no other. This is no unusual use of the word in this connection. Russell discusses the "particular mental elements necessary to constitute particular crimes," 17 and Kenny states that "every crime involves (1) a particular physical condition, . . . and (2) a particular mental condition causing this physical condition." 18 The phrase "the particular state of mind which must accompany such act or omission in order to constitute the crime charged" as used in the proposed section was meant to cover the mental element, whatever it may be and whatever it may be called, of the crime charged; and the foregoing discussion would seem to establish that this result was accomplished without in any way straining the accepted meaning of the words employed.

As examples of offenses in which no specific intent is necessary, and which according to his view are consequently not covered by the section, the editor mentions purchasing lottery tickets, dispensing liquor to minors, frequenting gambling dens and brothels, and statutory rape. He states that under the statute one who has a mania for committing these acts "would be unable to plead insanity and would apparently be sent to prison instead of to an insane asylum." So far as the writer knows, there is no reported case in which insanity has been set up as a defense to a charge of having committed any of these offenses. Even if some such cases have been overlooked, they are so few that the question whether they are covered by the proposed section is not of great practical importance. However, the question is of sufficient interest to deserve a serious discussion. Since the statute, as shown above, covers every offense, common law and statutory, which includes a mental element, the question whether it covers the offenses mentioned depends on whether any state of mind is included in their definition.

There are two classes of statutory prohibition which do not involve a specific intent. They are (1) those which require socalled general intent, as distinguished from specific intent, and (2) those in which the state of the mind of the doer is altogether immaterial. In a leading English case the latter group is divided 17 I RUSSELL, CRIMES, 7 ed., 102.

18 KENNY, OUTLINES OF CRIMINAL LAW, 37.