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of “melancholy accompanied by delusion.” In the test of responsibility in case of partial insanity a new element, not appearing in the requirements where the insanity is total, is introduced, viz., ability to distinguish between right and wrong with reference to the particular act. When "wrong" is first used it is impossible to determine from the context whether moral wrong or legal wrong is meant, but later "wrong” is joined with “criminal,” and followed by “punishment,” so legal wrong would seem to be there intended. In the last sentence of the second paragraph a new mental element, viz., “memory,” is introduced and made a test. It is difficult to see the relation which the second clause of this sentence bears to the first. According to the grammatical construction they are in apposition, but this cannot be since they are entirely different. Should the connective be "or” or “and”? The choice is important, as it greatly affects the scope of the rule. In this last clause the use of the terms “justice,” “right,” and “duty” indicates that there has been a transition from “legal wrong” to “moral wrong.”

In the third paragraph two new elements are introduced, viz., "understanding the nature and character of the act, and its consequences,” and “mental power sufficient to apply that knowledge (that the act is wrong and criminal] to his own case.” The joining of “criminal” and “punishment” to "wrong” in this paragraph indicates that moral wrong has been abandoned for legal wrong.

The fourth paragraph, the one adopted in 1914 by the Supreme Judicial Court as its "working rule,” is apparently applicable in all cases. The Chief Justice, however, as appears from the first sentence of the fifth paragraph, was applying this rule to the case of “partial insanity.” A comparison of the first and fourth paragraphs shows that, according to the tests laid down, a person whose intellectual and will powers are unimpaired but who has no conscience is totally insane and is not legally responsible, whereas a partially insane person, according to one interpretation of paragraph four, must be deprived of his reason, conscience, judgment, and power of control in order to have a defense, and according to the other interpretation must have had an irresistible impulse.

Following the paragraphs that have been discussed the Chief Justice laid down two new tests with special reference to delusion. This was said to be a defense (1) when “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 the act,(2) where the wrongful act was the result of “uncontrollable impulse.” The first of these is the mistake of fact” test, which is based on the incorrect premise that apart from the delusion the person is entirely sane.

The tests put to the jury by the Chief Justice, differing as they do among themselves, also differ from the rule announced in the preliminary statement. No distinction is here made between total and partial insanity, and the sole requirement is inability to distinguish between right and wrong with reference to the particular act, the word“punishment”indicating that “legal wrong” is meant.

The amount of practical value possessed by the charge of Chief Justice Shaw may be determined from the fact that the jury in the case, after hearing the charge and retiring for several hours, returned to the court room, and, according to the official report, asked the Chief Justice: “What degree of insanity will amount to a justification of the offense?"

The justification for using so much space in pointing out the inconsistencies and defects of this famous statement of the law relative to insanity is the fact that the reverence with which it has been and is regarded and its frequent citation have embarrassed clear thinking on the subject. Further than this, the Supreme Judicial Court of Massachusetts, as has been shown, still regards it as authoritative.

Notwithstanding the extremely narrow application of the "working rule” last announced by the highest court, it is highly probable that irresistible impulse unaccompanied by inability to distinguish between right and wrong, or the converse situation, would be held in a concrete case to constitute a defense.89 The charge of the trial judge to the jury is likely to be broader than the rule of the upper court. In other words, the living law in this respect is more comprehensive than the formal law. As regards delusion, the test which would now probably be given to a jury in Massachusetts would be the “mistake of fact” rule laid down by Chief Justice Shaw.90

According to the Massachusetts law insanity cannot reduce the degree of the offense charged in a case where it was not sufficient to relieve entirely from responsibility. 91 In both these instances the law would be changed by the adoption of the proposed statute.

89 Dicta to this effect occur in Commonwealth v. Cooper, 219 Mass. 1, 5, 106 N. E. 545 (1914).

90 Such is the view taken in the editorial note now under discussion. 30 Harv. L.

REV. 179.

Whether the law of Massachusetts relative to the criminal responsibility of the insane is represented by the entire charge of Chief Justice Shaw in the Rogers Case, or by the rule last announced by the Supreme Judicial Court, or by what the writer has ventured to suggest is the living law, it is submitted as a result of the foregoing discussion that each of these is less logical, less practical, and less comprehensive than the test of the proposed section.

New York. The New York statute on the responsibility of an idiot or lunatic is as follows:

"An act done by a person who is an idiot, imbecile, lunatic, or insane is not a crime.

"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:

1. “Not to know the nature and quality of the act he was doing; or, 2. “Not to know that the act was wrong.

The two provisions of this statute seem to be in conflict with each other. According to the first, the mere fact that the defendant is an idiot, imbecile, or lunatic is a complete defense. Under the second, such person must satisfy the “lack of knowledge” requirement. The Court of Appeals of New York in interpreting this statute has in effect disregarded the first provision by regarding the test of the second as a definition of idiocy, insanity, and lunacy. This view of insanity prevailed before the enactment of the statute. In Willis v. People, 1865, the Court of Appeals adopted the following statement:

“A person is not insane who knows right from wrong and that the act he is committing is a violation of law and wrong in itself.” 93 In 1873 it was squarely decided that irresistible impulse was no defense.94 The statute simply codified the previous law.

"92

91 Commonwealth v. Cooper, 219 Mass. I, 106 N. E. 545 (1914).
82 PENAL LAW, 1909, $ 1120.
32

N. Y. 715, 719. of Flanagan v. People, 52 N. Y. 467 (1873). In People o. McElvaine, 125 N. Y. 596,602, 26 N. E. 929 (1891), the Court of Appeals suggested, probably unadvisedly,

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The second provision of the statute has been strictly followed for all forms of insanity with the possible exception of delusion. In People v. Silverman, 1905, it is said:

“Whatever may be the opinion of physicians or medical experts on the subject, there is but one test of responsibility known to the law, that found in section 21 of the Penal Code, which is but a statutory declaration of the law, as it had long prevailed.” 95 In People v. Taylor, 1893, the Court of Appeals, while announcing the "right and wrong" rule of the statute, says:

"An insane delusion with reference to the conduct and attitude of another cannot excuse the criminal act of taking his life, unless it is of such a character, that if it had been true, it would have rendered the homicide excusable or justifiable.” 96 A similar statement was made in People v. Ferraro, 1900.97 In People v. Schmidt, 1915,98 it was held that the test of the statute applies to the case of delusion, and the “mistake of fact" test was not mentioned. The Court of Appeals in that case defined "wrong" in the statute to include moral as well as legal wrong, and held erroneous the instruction of the trial judge that "wrong" means “contrary to the law of the State.” The court also announced that irresistible impulse is no defense in New York. This case is an authoritative announcement that the law in New York is in strict accord with the provision of the statute.

Under a rule as narrow as that in New York it is likely to happen, as it did in the Thaw Case, that the jury will acquit, on the ground of insanity, persons who do not come within the rule. It was not seriously contended in the Thaw Case that the defendant did not know that his act was both legally and morally wrong.

It is clear that the provision of the proposed section is more

that lack of control is a relevant consideration: “On the whole case it seems quite clear to us that the defendant had sufficient intelligence and self-control to understand the nature and character of the act committed by him, and to refrain from its commission if found to be inconsistent with a due regard for his own safety or interest."

* 181 N. Y. 235, 240, 73 N. E. 980. A similar statement was made in People o. Carlin, 194 N. Y. 448, 455, 87 N. E. 805 (1909).

D6 138 N. Y. 398, 406, 34 N. E. 275. The court in this case states that the New York rule has been criticized by eminent alienists because it does not take into consideration lack of self-restraint.

97 161 N. Y. 365, 378, 55 N. E. 931.
os 216 N. Y. 324, 110 N. E. 945 (1915).

comprehensive than that of the New York statute. It is submitted that the former is also more logical and more practical.

Illinois. The existing Illinois statute, which was enacted at least as early as 1827, reads as follows:

“A lunatic or insane person, without lucid intervals, shall not be found guilty of any crime or misdemeanor with which he may be charged: Provided, the act so charged as criminal shall have been committed in the condition of insanity.” 99

This statute lays down an amazing proposition - that only those lunatics and insane persons who have no “lucid intervals” shall be exempt from punishment. The proviso of the statute is redundant and superfluous, for if the insane person had no lucid intervals any act done by him must necessarily have been done in a “condition of insanity.” The statute prescribes no symptoms, but simply requires a state of lunacy or insanity without “lucid intervals.”

The tests actually applied by the courts of Illinois have been entirely independent of the statute. In the first case before the Supreme Court, 1860,100 the trial judge had charged the jury as follows:

"Before the jury can acquit the prisoner on the ground of insanity, they must believe, from the evidence, that at the time of the killing he was in a condition of insanity; that his insanity was of such a character that he did not understand the nature, quality, and character of the act he was committing; or that knowing it, he was acting under such an impulse of passion or insane desire to kill, as to exempt him from the dominion and control of reason. In order for the jury to acquit on the latter ground, they should be satisfied, from the evidence, that this insane desire was of a character that inclined the prisoner to acts of homicide, that is, that it was evinced in attempts at killing in more than a single instance, and must be made to appear in more than the single act of killing the deceased.” This charge was approved by the Supreme Court. The trial judge refused to charge, as requested by the defendant, that although the defendant may not have been so insane as to excuse him entirely, yet it might reduce the degree of the crime from murder to manslaughter. The Supreme Court held this instruction should have been given, saying:

99 ILL. ANNOT. STAT. 1913, 8 3977.
100 Fisher v. People, 23 Ill. 283.

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