in the first degree, whose mental condition was such that all the elements of first-degree murder were present except, for instance, premeditation, when this is required, would be convicted of murder in the second degree, the crime he actually committed.

The idea that a derangement of the defendant's mental processes may be material in determining whether he shall be convicted of a lesser crime than that charged is not a new one in the law. It is constantly being applied when the defense is intoxication.49 The proposition has been well stated by the Supreme Court of Connecticut:

"Intoxication is admissible in such cases [prosecutions for first-degree murder] not as an excuse for crime, not in mitigation of punishment, but as tending to show that the less and not the greater offense was in fact committed." 50

Is there any logical or practical reason why this doctrine is not as applicable to the defense of insanity as to that of intoxication? Mr. Justice Gray of the United States Supreme Court stated the doctrine broadly enough to cover insanity as well as intoxication:

"When a statute establishing different degrees of murder requires deliberate premeditation in order to constitute murder in the first degree, the question whether the accused is in such a condition of mind, by reason of drunkenness or otherwise,51 as to be capable of deliberate premeditation, necessarily becomes a material subject of consideration by the jury." 52

This doctrine is also applied in cases where a person kills another at a time when his mental processes have been temporarily affected

49 Jenkins v. State, 58 Fla. 62, 50 So. 582 (1909); Aszman v. State, 123 Ind. 347, 24 N. E. 123 (1889); State v. Sparegrove, 134 Iowa 599, 112 N. W. 83 (1907); Terhune v. Commonwealth, 144 Ky. 370, 138 S. W. 274 (1911); Cline v. State, 43 Ohio St. 332, 1 N. E. 22 (1885); Keenan v. Commonwealth, 44 Pa. 55 (1862); People v. Peterson, 166 Mich. 10, 131 N. W. 153 (1911).

"Whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute a particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act." Cook, CRIM. CODE OF N. Y., 1220. Several courts employ the familiar insanity test — inability to distinguish between right and wrong - as a guide in determining whether a necessary intent is negatived by intoxication. Ryan v. U. S., 26 App. D. C. 74 (1905); State v. Ford, 16 S. D. 228, 92 N. W. 18 (1902).

50 Carpenter, J., in State v. Johnson, 40 Conn. 136, 143 (1873).

51 The italics are the present writer's.

52 Hopt v. People, 104 U. S. 631, 634 (1881).

by provocation of certain kinds. In such cases his state of mind, though not amounting to a complete defense, reduces the degree of the offense from murder to manslaughter.53 The difficulty has been that the courts in dealing with the defense of insanity have been concerned to such a degree in describing psychological phenomena, that they inhibited themselves from seeing the application of general principles of law to the problem before them.

A recent case in Utah 54 adopted the doctrine of partial responsibility contended for here. In this case the defendant was indicted for first-degree murder under a statute requiring that the killing be premeditated. The medical evidence was conflicting, but tended to indicate that the defendant was somewhat unsound mentally, with some symptoms of epilepsy. The defendant was convicted of murder in the first degree. The Supreme Court reversed the conviction on the ground inter alia that the jury should have been instructed that the mental condition of the defendant might negative the required deliberation. Regarding this point the court said:

"While the jury found that his condition in that respect was not such as to affect his mental capacity to relieve him from responsibility, yet it may have been such as to affect his mental capacity to coolly deliberate and premeditate on his acts. The jury, therefore, as hereinafter suggested, should have been instructed to consider all of the foregoing

53 "But if the act of killing, though intentional, be committed under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement, by which the control of the reason was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition; then the law, out of indulgence to the frailty of human nature, or rather, in recognition of the laws upon which human nature is constituted, very properly regards the offense as of a less heinous character than murder, and gives it the designation of manslaughter." Christiancy, J., in Maher v. People, 10 Mich. 212, 219 (1862). To the same effect are the following: Collins v. State, 102 Ark. 180, 143 S. W. 1075 (1912); State v. Creste, 27 Del. 118, 86 Atl. 214 (1913); State v. Hoyt, 13 Minn. 132 (1868); State v. Grugin, 147 Mo. 39, 47 S. W. 1058 (1898); State v. Kennedy, 169 N. C. 288, 84 S. E. 515 (1915); Commonwealth v. Colandro, 231 Pa. St. 343, 80 Atl. 571 (1911); Mitchell v. State, 179 S. W. 116 (Tex. 1915).

54 State v. Anselmo, 46 Utah 137, 148 Pac. 1071 (1915). An early Illinois case is to the same effect. Fisher v. People, 23 Ill. 283 (1860). In the following cases the doctrine is repudiated: Commonwealth v. Wireback, 190 Pa. St. 138, 42 Atl. 542 (1899); Commonwealth v. Cooper, 219 Mass. 1, 106 N. E. 545 (1914); Witty v. State, 75 Tex. Crim. R. 440, 171 S. W. 229 (1914).

evidence in determining appellant's mental capacity to deliberate and premeditate the homicide. While one's mental condition may not excuse his act, it may nevertheless affect the degree of guilt."

The English Court of Criminal Appeal has gone so far as to hold that an unsound mental condition, which is insufficient to relieve from responsibility, may be ground for reducing the penalty.55

The editor states that the proposition now being contended for, which is generally called partial responsibility, involves the theory of partial insanity. If he is using "partial insanity" to describe the condition of one who is not entirely deprived of reason and understanding, then undoubtedly his statement is correct. This is a condition which the science of today, as well as that of the past, recognizes, for it is that of most persons mentally diseased. If, however, he is using the term "partial insanity," as it is often used, to describe a condition such as that set forth by the judges in McNaughton's Case, viz., that of a person insane in one particular and sane as to all others, a condition which probably never existed in fact, then "partial responsibility" as used in this connection in no way involves "partial insanity."

The editor suggested that the adoption of the doctrine of partial responsibility would lead to compromise verdicts when the evidence is conflicting. It is submitted that this result is not nearly so likely to happen as is the acquittal, under the present rules, of a defendant who is shown to have lacked some of the mental element necessary for the full crime charged.56 Illogical verdicts are more likely to result from illogical than from logical rules.

IV. and V. The fourth and fifth objections of the editor raise the question as to the scope of the proposed section in comparison with the present law on the subject.

In attempting to answer this question, it is first necessary to

5 Appeal of Holder, 7 Crim. App. R. 59 (1911); Appeal of McQueen, 8 Crim. App. R. 89 (1912).

56 "The law, as I shall have again more fully to point out, will remain a dead letter, or will be continually ignored by the sympathies of judges, juries, and, I may add, of medical witnesses, unless some practical distinction can be arranged which may enable the responsible insane to undergo some lower degree of punishment than that inflicted on similar delinquents being of sound mind." MAYO, MEDICAL TESTIMONY IN LUNACY, 50. "Until some middle way is devised by which offenders neither altogether innocent, nor altogether guilty, can have their proper meed of conviction, juries in cases of murder will continue to find verdicts of not guilty on the false plea of insanity." BUCKNILL, UNSOUNDNESS OF MIND, 117.

point out certain fundamental differences between the test of irresponsibility prescribed by the proposed section and the tests now employed. The latter were framed from the medical standpoint, and consist simply of a statement of certain mental symptoms, viz., inability to distinguish between right and wrong, irresistible impulse, and delusion, the existence of one or more of which is treated by the law as a defense. These symptoms represent but a small portion of the phenomena of mental disease, and they bear no necessary relation to the ordinary legal rules for determining responsibility. They are simply obsolete medical theories crystallized into rules of law. In contrast to this situation, the test of the proposed section is based upon one of the most fundamental principles of criminal law, the application of which to the problem of insanity the courts simply lost sight of as a result of their dependence upon the medical profession for all knowledge of mental disease, and the misconceptions entertained by physicians as to the character of this disease. The test of the proposed section is limited to no particular symptoms and embodies no medical theories. The question under the section is whether the symptoms of mental disease, whatever they may be, negative the state of mind required for the crime charged. The proposed test will remain unaffected by divergent views and changing theories regarding the nature and character of mental disease.

The practical method for determining the effect of the enactment of this section into law is to compare it with the existing law in individual states, and this the writer proposes to do. Such a comparison will, however, be facilitated by first discussing the general state of the law regarding "insane delusion." This course is particularly indicated since the editor states that insane delusion "is a species of the genus mistake of fact and excuses on that ground." No feature of the problem of determining the relation between criminal responsibility and mental disease has caused more trouble than the proper test for insane delusion. From obscurity, so far as the law is concerned, this symptom was brought into the limelight by Erskine in Hadfield's Case 57 and as a result of his oratory

57 "Delusion, therefore, where there is no frenzy or raving madness, is the true character of insanity; and where it cannot be predicated of a man standing for life or death for a crime, he ought not, in my opinion, to be acquitted." Speech of Erskine to jury, Hadfield's Case, 27 How. St. Tr. 1281, 1314 (1800).

became for a time the sole test of insanity for the courts.58 In McNaughton's Case, where the defense was delusion, Tindal, Ch. J., instructed the jury:

"If he was not sensible at the time he committed that act, that it was in violation of the law of God and of man, undoubtedly he was not responsible for that act.” 59

When, however, the King's Bench judges, following McNaughton's Case, gave their famous answers to the questions of the Lords, they first narrowed their consideration of delusion to those who "suffer from partial delusions only and are not in other respects insane," and they laid down, without appearing to note any inconsistency, two distinct tests relative to such delusions: 1. The victim of delusion is responsible "if he knew at the time of committing such crime that he was acting contrary to law." 2. "He must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real." 60 This second rule here appears for the first time in the law and is the direct result of the premise laid down, that apart from the delusion the person is perfectly sane.

The same confusion characterizes the present law on the subject of delusions. There are at least five different tests for determining when delusion shall be a defense: 1. When the facts of the delusion, if true, would be a defense.61 This is the ordinary test of mistake of fact, and is the second rule laid down by the judges in McNaughton's Case. 2. When the delusion destroys ability to distinguish between right and wrong.62 3. When irresistible impulse

58 "To say a man was irresponsible, without positive proof of any act to show that he was labouring under some delusion, seemed . . . to be a presumption of knowledge which none but the great Creator Himself could possess." Lord Denman to jury in Reg. v. Smith (1849), quoted in WILLIAMS, UNSOUNDNESS OF MIND, 5.

"The test of delusion was thus (by Erskine in Hadfield's Case) for the first time laid down, and though in itself delusive from its want of comprehensiveness, its temporary establishment did good service by overthrowing and replacing the unfortunate dogma of Hale." BUCKNILL, CRIMINAL LUNACY, 41.

59

4 Rep. St. Tr. (N. S.) 925.

60 Ibid., 930, 932.

61 Smith v. State, 55 Ark. 259, 18 S. W. 237 (1891); People v. Hubert, 119 Cal. 216, 51 Pac. 329 (1897); State v. Merwherter, 46 Iowa 88 (1877); Commonwealth v. Rogers, 7 Metc. (Mass.) 500 (1844); Thurman v. State, 32 Neb. 224, 49 N. W. 338 (1891); State v. Lewis, 20 Nev. 333, 22 Pac. 241 (1889); People v. Taylor, 138 N. Y. 398, 34 N. E. 275 (1893); Taylor v. Commonwealth, 109 Pa. St. 262 (1885).

62 People v. Willard, 150 Cal. 543, 89 Pac. 124 (1907); Smith v. Commonwealth, I Duv. (Ky.) 224, 230 (1864); Grissom v. State, 62 Miss. 167 (1884).