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volition is an element of criminal intent.42 Under both these views a lack of volition due to mental disease is a defense to a charge of crime.

Whenever an impulse is irresistible, there is ex vi termini a clear lack of volition, or, as stated by the editor, “the power of choice is negatived by the mental disorder." It follows, then, that the proposed section covers the case of irresistible impulse. So certainly is this so, that there seems no basis for the following statement of the editor in explanation of his contention to the contrary: "If this is not a true analysis of the meaning of the statute, the fact that it is a reasonably possible analysis makes the proposal unsatisfactory as model legislation.”

It may possibly be argued at this point that, although an analysis of the section shows that it clearly includes irresistible impulse, this fact is not so obvious and apparent as to prevent some courts from overlooking it. To answer such an argument it is necessary to investigate the reason why courts refused to accept irresistible impulse as a defense when it was first offered, and why some of them continue to do so. It is difficult to see, from an abstract consideration of the question, why courts should have refused to recognize irresistible impulse as a defense, when it so clearly negatives a necessary element of crime, and when they without hesitation recognized other manifestations of lack of volition.43 A study of the cases,

42 “Will is as necessary an element of intent as are reason and judgment.” Simmons, C. J., in Flanagan v. State, 103 Ga. 619, 626, 30 S. E. 550 (1898).

“This distinct element in criminal Intent consists not alone in the voluntary movement of the muscles (i.e. in action), nor yet in a knowledge of the nature of an act, but in a combination of the two, the specific will to act, i.e. the volition exercised with conscious reference to whatever knowledge the actor has on the subject of the act." WIGMORE, EVIDENCE, $ 242.

43 See Anonymous Case, Lib. Assis. 287, pl. 17 (1369).

“If there be an actual forcing of a man, as if A by force take the arm of B and the weapon in his hand, and therewith stabs C, whereof he dies, this is murder in A, but B is not guilty.” HALE, P. C., 434.

"If a Man's Arm be drawn by Compulsion, and the Weapon in his Hand kills another, it shall not be felony.” Pollard, Serjeant, in Reniger v. Fogossa, 1 Plowd. I, 19 (1550).

“If A takes the hand of B, and with it strikes C, A is the trespasser and not B." Gibbons o. Pepper, 1 Ld. Raym. (1695) 38, 39.

“A man may throw himself into a river under such circumstances as render it not a voluntary act; by reason of force, applied either to the body or the mind.” Erskine, J., to jury in Reg. v. Pitts, C. & M. 285 (1842).

"I do not know indeed that it has ever been suggested that a person who in his sleep

however, discloses the reasons for such refusal. The most important of these were: 1. It was not believed that the impulse was really irresistible.44 2. Impulse, the result of mental disease, was confused with an ordinary outbreak of passion. It was thought that the difficulties of proof were so great that to permit such a defense would be opening the door to impulses not really irresistible.45

set fire to a house or caused the death of another would be guilty of arson or murder.” 2 STEPHEN, HISTORY OF CRIMINAL LAW, 100.

44 “But if an influence be so powerful as to be termed irresistible, so much the more reason is there why we should not withdraw any of the safeguards tending to counteract it. There are three powerful restraints existing, all tending to the assistance of the person who is suffering under such an influence the restraint of religion, the restraint of conscience, and the restraint of law. But if the influence itself be held a legal excuse, rendering the crime dispunishable, you at once withdraw a most powerful restraint — that forbidding and punishing its perpetration.” Bramwell, B., in Reg. o. Haynes, 1 F. & F. 666, 667 (1859).

“It is true that learned speculators, in their writings, have laid it down that men, with a consciousness that they were doing wrong, were irresistibly impelled to commit some unlawful act. But who enabled them to dive into the human heart, and see the real motive that prompted the commission of such deeds?” Rolfe, B., in Reg. o. Stokes, 3 C. & K. 185, 188 (1848).

“For myself I cannot see how a person who rationally comprehends the nature and quality of an act, and knows that it is wrong and criminal, can act through irresistible innocent impulse.” Brannon, J., in State v. Harrison, 36 W. Va. 729, 751, 15 S. E. 982 (1892).

“But, if, from the observation and concurrent testimony of medical men who make the study of insanity a specialty, it shall be definitely established to be true, that there is an unsound condition of the mind, — that is, a diseased condition of the mind, in which, though a person abstractly knows that a given act is wrong, he is yet, by an insane impulse, that is, an impulse proceeding from a diseased intellect, irresistibly driven to commit it, — the law must modify its ancient doctrines and recognize the truth, and give to this condition, when it is satisfactorily shown to exist, its exculpatory effect.” Dillon, Ch. J., in State v. Felter, 25 Iowa 67, 83.

To the same effect see Spencer v. State, 69 Md. 28, 40, 13 Atl. 809 (1888); Cunningham v. State, 56 Miss. 270, 279 (1879); People v. Waltz, 50 How. Pr. (N. Y.) 204, 214 (1874).

45 “If this were not the law, every thief, to establish his irresponsibility, could assert an irresistible impulse to steal, which he had not mental or moral force sufficient to resist, though knowing the wrongful nature of the act; and in every homicide it would only be necessary, in order to escape punishment, to assert that anger or hatred or revenge or an overwhelming desire to redress an injury, or a belief that the killing is for some private or public good, has produced an irresistible impulse to do a known illegal and wrongful act. So that really there could never be a conviction if the guilty party should assert and maintain an irresistible impulse, produced by some pressure which he could not resist, as a reason for committing a crime. To restrain such impulses is the legal and moral duty of all men, and the protection of society demands that he who yields to them must take the consequences of his acts.” Davis, J., in People v. Coleman, 1 N. Y. Crim. R. 1, 3 (1881).

3. It was believed that recognition of this defense would be dangerous to society.46 4. At the time irresistible impulse was first offered as a defense, the law relative to insanity had become crystallized by prescribing certain mental symptoms as tests of irresponsibility, so that the new symptom, not being included in the tests, was not allowed.47

Today the fact that an insane impulse may be truly irresistible is so well established,48 that no court could gainsay it nor refuse to recognize a distinction between such an impulse and an ordinary outburst of passion. Likewise medical diagnosis of mental disease is so much more accurate and precise that the difficulties of proof are much lessened. Further, the adoption of the proposed statute would do away with all the symptomic tests for determining the criminal responsibility of the insane, so that the courts would be free to apply the ordinary principles of law to the situation. It is submitted that, in the situation just described, it is almost incon

“It seems to us, however, that in the view suggested the difficulty would be great, if not insuperable, of establishing by satisfactory proof whether an impulse was or was not ‘uncontrollable.'”. Wallace, J., in State v. Bundy, 24 S. C. 439, 445 (1885).

46 “Indeed, it would seem dangerous to society to say that a man who knows what is right and wrong may nevertheless, for any reason, do what he knows to be wrong without any legal responsibility therefor. The law will hardly recognize the theory that any uncontrollable impulse may so take possession of a man's faculties and powers as to compel him to do what he knows to be wrong and a crime, and thereby relieve him from all criminal responsibility.” Valentine, J., in State v. Nixon, 32 Kan. 205, 212, 4 Pac. 159 (1884).

“It will be a sad day for this state, when uncontrollable impulse shall dictate ‘a rule of action' to our courts.” Sherwood, J., in State v. Pagels, 92 Mo. 300, 317, 4 S. W. 931 (1887).

"If juries were to allow it as a general motive, operating in cases of this character, its recognition would destroy social order, as well as personal safety.” Henderson, J., in Boswell v. State, 63 Ala. 307, 321 (1879).

47 "The medical man called for the defense defined homicidal mania to be a propensity to kill, and described moral insanity as a state of mind, under which a man, perfectly aware that it was wrong to do so, killed another under an uncontrollable impulse. This would appear to be a most dangerous doctrine, and fatal to the interests of society and security of life. The question is, whether such a theory is in accordance with law? The rule, as laid down by the Judges, is quite inconsistent with such a view; for it was that a man was responsible for his actions if he knew the difference between right and wrong.” Wightman, J., in Reg. o. Burton, 3 F. & F. 772, 780 (1863).

18 “An impulse is an action committed consciously, but without motive or forethought, and sometimes directly opposed by the will power of the individual.” L. C. BRUCE, STUDIES IN CLINICAL PSYCHIATRY, 27.

Krafft-Ebing states that impulsive movements may be due to irritation of the psychomotor centers. Text BOOK OF INSANITY, 321.

ceivable that any court of last resort in this country would refuse to allow as a defense a clearly established case of insane impulse.

III. The report of the committee, that drafted the bill under discussion, contained the following statement relative to the scope of section one:

“Under our present law on the subject of insanity the question is whether the defendant by reason of his mental disease shall be held not responsible to the law for the injury he has done. There is another question which is almost equally important, and that is, whether a mental disease, although not of sufficient degree to relieve entirely from responsibility, may not be held to lessen the degree of the crime. For instance, may not a person charged with murder escape conviction for that offense because by reason of his mental disease he did not have the malice aforethought, but be found to have enough mens rea to be guilty of manslaughter? This doctrine of partial responsibility has been adopted by some continental countries and has earnest advocates here. The Supreme Court of Utah in a decision rendered last year applied this doctrine. If the proposal of the committee be accepted, partial responsibility follows as a logical conclusion.”

The editor states that this will be "holding lunatics for part of their crimes,” and objects to the suggestion on the grounds: 1. “It would lead to the result that the law would establish a barometric scale of states of responsibility divided into as many grades as there are degrees of insanity.” 2. “To admit such partial responsibility is to make concessions to a science of the past where partial insanity was recognized.” 3. “When conflicting eyidence of alienists is introduced there will be danger of a compromise by the jury and either a prisoner who is responsible will receive too light a punishment or one who ought to escape altogether will be condemned." The suggestion of the committee does not involve holding a lunatic for part of his crime, as stated by the editor, but for the exact crime committed by him where he has been charged with a severer crime than he committed. Under the present practice a defendant charged with first-degree murder, who sets up insanity as a defense, must be either convicted of the crime charged or entirely acquitted, although the evidence shows that the crime actually committed was murder in the second degree or manslaughter. The first section of the proposed bill would remedy this illogical situation, and under it a defendant charged with murder

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.” 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

" 50

49 Jenkins v. State, 58 Fla. 62, 50 So. 582 (1909); Aszman o. State, 123 Ind. 347, 24 N. E. 123 (1889); State o. Sparegrove, 134 Iowa 599, 112 N. W. 83 (1907); Terhune v. Commonwealth, 144 Ky. 370, 138 S. W. 274 (1911); Cline o. 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 o. Ford, 16 S. D. 228, 92 N. W. 18 (1902).

50 Carpenter, J., in State o. Johnson, 40 Conn. 136, 143 (1873).
61 The italics are the present writer's.
62 Hopt v. People, 104 U. S. 631, 634 (1881).

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