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“Though such a state of mind would not excuse the homicide, it should reduce it to manslaughter, for deliberation would be absent, and that is essential to constitute murder."

The court made no reference to the statute.

Three years later, the Supreme Court in Hopps v. State, where the defense was insane delusion, after stating that the authorities were in great confusion, and that it is difficult to lay down a general rule, announced the following:

“Whenever it should appear from the evidence, that at the time of doing the act charged, the prisoner was not of sound mind, but affected with insanity, and such affection was the efficient cause of the act, and that he would not have done the act but for that affection, he ought to be acquitted. But this unsoundness of mind, or affection of insanity, must be of such a degree as to create an uncontrollable impulse to do the act charged, by overriding the reason and judgment, and obliterating the sense of right and wrong as to the particular act done, and depriving the accused of the power of choosing between them. If it be shown the act was the consequence of an insane delusion, and caused by it, and by nothing else, justice and humanity alike demand an acquittal.” 101

According to the first part of this rule an uncontrollable impulse must concur with and be the product of the inability to distinguish between right and wrong. In addition to the fact that in most cases of irresistible impulse the power to know right from wrong is not destroyed, it is very doubtful if causal connection can in any case be established between these two symptoms. At best this test covers an extremely small class of cases. In contrast to this test, which according to its wording seems to be applicable to all cases, is the statement regarding delusion. It is difficult to see how these can be reconciled. The Supreme Court in the Hopps Case took no notice of their former decision and made no reference to the statute except the following:

“Our statute was designed to ameliorate the rigor of the old rule of the common law, in declaring that a person 'affected with insanity,' shall not be considered a fit subject of punishment, for an act done, which, under other circumstances or disposition of mind, would be criminal.”

In Dunn v. People,102 1884, the trial court in one instruction said:

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"If at the time of committing the alleged act defendant was able to distinguish right from wrong, then you can not acquit him on the ground of insanity,” and in another instruction stated in effect that either inability to distinguish between right and wrong or uncontrollable impulse would be a defense. The Supreme Court approved both instructions and quoted the rule of the Hopps Case in support of them.

Two years later in the case of Dacey v. People,103 the trial judge charged the jury in the words of the general test of the Hopps Case, and this was approved by the Supreme Court. Though the evidence showed delusional insanity, neither the trial court nor the Supreme Court made any reference to the special test for delusion laid down in the Hopps Case.

In Hornish v. People,104 1892, the trial judge charged in effect that either inability to distinguish between right and wrong or inability “to choose either to do or not to do the acts constituting such crime, and to govern his conduct in accordance with such choice” would be a defense. This was approved by the Supreme Court, who said it was in accord with the test of the Hopps Case. This test was approved in two subsequent cases in 1894 105 and

1895.106

108

In O'Shea v. People,107 1905, the trial judge in examining a witness stated that "insanity does not involve the question of right and wrong.” This was held erroneous, the Supreme Court saying:

“Where insanity is interposed as a defense to crime, it involves the defendant's knowledge of right and wrong." The Hopps Case was not cited. The Supreme Court in 1915 impliedly approved the test of the Hopps Case. This review of the Illinois cases leaves one in doubt as to what is the law in that state relative to insanity. None of the cases cite the provisions of the statute, so that may be disregarded. As the general test of the Hopps Case has been so many times approved by the Supreme Court, they would probably do so again. In practice some trial

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judges charge that either inability to distinguish between right and wrong or irresistible impulse is a defense. There seems now to be no special rule for delusion, such as announced in the Hopps Case.

However it may be regarded, the law of Illinois relative to insanity is less logical, less practicable, and less comprehensive than the rule of the proposed section.

The merits of the proposed section, in comparison with the existing legal tests relative to the defense of insanity, may be briefly summarized.

I. The proposed section is based upon the fundamental principle of criminal jurisprudence, that a crime has not been committed when the necessary mental element is lacking. The direct relation of insanity to this mental element, which relation is logically apparent, was formerly well recognized in the law. The Roman law set forth clearly that the effect of insanity was to negative the wrongful state of mind.109 At an early period in the English law Staundforde stated the same proposition.110 This relation between insanity and the mental element of crimes was largely lost sight of when the courts commenced announcing and attempting to apply medical tests. Some judges and writers, however, continued to state that insanity negatives criminal intent.111 The provision of the proposed section is more exact than this statement in that it recognizes the fact that the mental element of crimes is not a constant quantity, and narrows the issue to whether the mental element of the crime charged has been negatived by the mental disease.

II. The proposed section embodies no medical or psychological theories and consequently will not be affected by changing 109 Furiosi ... nulla voluntas est.

Dig. 50, 17, 40. Furiosus ... doli capax non est. Dig. 47, 10, 3, I.

. . Et ideo quaerimus, si furiosus damnum dederit, an legis Aquiliae actio sit? Et Pegasus negavit; quae enim in eo culpa sit, quum suae mentis non sit? DIG. 9, 2, 5, 2.

110 Ceo est quant un tua auter oue felonious volunte ou intente, quel chose home de non sane memorie, ne peut faire. STAUNDFORDE, LES PLEES DEL CORON, Lib. 1, Cap. 9.

111 “By reason of his incapacity, he cannot act felleo animo.HIGHMORE, LAW OF LUNACY, 197.

“At the trial where insanity is set up as a defense, two questions are presented: First: Had the prisoner a mental disease? Second: If he had, was the disease of such a character, or was it so far developed, or had it so far subjugated the powers of the mind, as to take away the capacity to form or entertain a criminal intent?” Ladd, J., in State v. Jones, 50 N. H. 369, 393 (1871). To the same effect are COLLINSON, LUNATICS, 471; COOPER, MEDICAL JURISPRUDENCE, 380; HARRIS, CRIMINAL LAW, 12 ed., 16.

views as to the nature and scope of mental disease. The difficulty with the existing legal tests on this subject is that they are based on medical theories, 112 many of which are obsolete and with which

113 The "mistake of fact” rule as to delusion, announced by the Judges after McNaughton's case and usually followed today, which is based on the premise that except for the delusion the person is entirely sane, resulted from the testimony of Dr. E. T. Monro in McNaughton's Case. He was asked: "Is it consistent with the pathology of insanity, that a partial delusion may exist, depriving the person of all self-control, whilst the other faculties are sound?” (Answer) — “Certainly: monomania may exist with general sanity.” 4 Rep. St. Tr. (n. s.) 919. This view of delusion was in perfect accord with the psychology of the time, which regarded each function of the brain as independent of the others. Paton, PSYCHIATRY, 119.

Doe, J., in State v. Pike, 49 N. H. 399, 437 (1870) and Somerville, J., in Parsons r. State, 81 Ala. 577, 584 (1886) state that the “knowledge of right and wrong" test is based on an early medical theory. The writer, though convinced that this statement is correct, has not been able to verify it completely. There is no doubt, however, that the inability to distinguish between right and wrong was regarded by the medical profession as a characteristic symptom of insanity. (See testimony of John Connolly, physician to the Hunwell Lunatic Asylum, in Queen o. Oxford, 4 Rep. St. Tr. (N. S.) 498, 540 (1840).) It was early laid down by the commentators that a lunatic was not responsible, because he was unable to know right from wrong.) “Those who are under a natural disability of distinguishing between good and evil, as ideots and lunatics are not punishable by any criminal prosecution whatsoever.” 1 HAWK. P. C. 1.) As physicians testified that particular defendants were unable to distinguish right from wrong, this became the test of, rather than the reason for, irresponsibility.

The earlier tests were likewise based on contemporaneous medical views. Sir Matthew Hale's dissertation on the law of insanity shows clearly its medical origin. The following statement is an interesting illustration: “Again, this accidental dementis, whether temporary or permanent, is either the more dangerous and pernicious, commonly called furor, rabies, mania, which commonly ariseth from adust choler, or the violent inflammation of the blood and spirits, which doth not only take away the use of reason, but also superadds to the unhappy state of the patient, rage, fury, and tempestuous violence; or else it is such as only takes away the use and exercise of reason, leaving the person otherwise rarely noxious, such as is a deep delirium, stupor, memory quite lost, the phantasy quite broken, or extremely disordered.” HALE, P. C. 31.

The theory that the existence of delusion is the test of insanity, which prevailed in the law during the early part of the nineteenth century, was in accordance with the views of the medical profession. In 1810 Dr. Robert Darling Willis stated the following definition of insanity before a committee of the House of Commons: "In insanity the mind is occupied upon some fixed assumed idea, to the truth of which it will pertinaciously adhere, in opposition to the plainest evidence of its falsity; and the individual is always acting under that false impression.” Dr. Francis Willis, in a treatise published in 1823, quotes this definition and says: “An unsound mind is marked by delusion.” TREATISE ON MENTAL DERANGEMENT, 43, 221.

A great variety of symptomic tests of responsibility was early announced, as is shown by the following statement: "Thence has arisen so many ridiculous and untenable opinions, unsound and illogical propositions, unsafe and dangerous precedents. A regards motive as sufficient test; B requires knowledge of morality or immorality of

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the scientific knowledge of the present sharply conflicts. The proposed section does not limit the defense to any particular form or symptoms of mental disease.

III. The proposed section does away with all legal definitions of insanity. For purposes of determining criminal responsibility, the law, in some jurisdictions, has prescribed the requisites of insanity.113 Much of the confusion that frequently arises when insanity is set up as a defense is due to the conflict between the legal definition of insanity, and the conception of mental disease held by the medical experts.114 The proposed section does not contain the word “insanity” and does not attempt to say what shall constitute such a mental condition.

IV. Under the proposed section the medical and legal professions will each perform their proper functions. Mental disease constitutes a medical problem, and the diagnosis and symptomatology of it should be determined by physicians. Criminal responsibility, on the other hand, is a legal question,115 and the rules for determining such responsibility should be fixed by the law, and administered by the legal profession. Under the proposed section the medical witness will state his opinion regarding the mental condition of the defendant at the time of the alleged offense,116 and the

act; C demands a comprehension of its relations to the law; D argues from the presence or absence of self-restraint; E considers the existence of delusion essential; F associates delusion with act; G rejects the mental unless corroborated by the physical condition; H commingles insanity with crime; and All contribute somewhat to involve the question in almost inextricable perplexity. We might extend this list: to do so would be merely to repeat what we have already propounded.” WILLIAMS, UNSOUNDNESS OF MIND, 205 (London, 1856).

113 See the New York statute quoted supra for an example of this.

114 “We believe that a want of harmony must ever exist between the legal and medical doctrines of insanity in its connexion with responsibility. The two cannot be identical, and for this reason: — Law demands a fixed rule - Medicine admits but a general principle. What would be thought of the physician who undertook in the definition of any, even the simplest, disease, to say, 'Certain symptoms must be present'? His theory would lead to a series of disappointments, his practice be a continuation of blunders! Yet, Law steps forward with her definition of unsoundness of mind; and, according to this definition, on which both the life and reputation of society may depend, one half mankind are mad, and half the mad are wise.” WILLIAMS, UNSOUNDNESS OF MIND, 2.

115 “Criminal responsibility means accountability for one's actions to the criminal law.” From first report of this committee, 2 J. CRIMINAL LAW AND CRIMINOLOGY, 523.

116 “The physician's duty in court cases is simply to discover the mental condition of the patient. This having been done, the question of the responsibility or irresponsi

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