As to partial insanity, that is, when a person is sane on all matters except one or more, the judges declared that mental or psychical derangement. Chief Justice Shaw, in Commonwealth v. Rogers. 7 Metc. 500, defines insanity as recognized by the law, as 1. A want of capacity and reason to enable a person to distinguish between right and wrong, and understand the nature, character, and consequences of his act, and mental powers sufficient to apply that knowledge to his own case; 2. A delusion or real and firm belief of the existence of a fact which is wholly imaginary, and under which he does an act which would be justifiable if such fact existed; 3. An un controllable impulse, which is the result of mental disease. Chief Justice Gibson, of Pennsylvania, in Commonwealth v. Mosler, 4 Barr 267, prescribes substantially the same. The insanity of uncontrollable impulse is propounded in criminal prosecutions mainly under the forms of homicidal mania and kleptomania, though several other forms are recognized by medical writers. A voluntary vicious indulgence, which grows into an inveterate habit, beyond control, is not insanity. It must be an irresistible impulse, "which is the result of mental disease." In The People v. Sprague, 2 Parker's Crim. Cas. 43, where the defense of kleptomania was successfully pleaded, it was proved that insanity had been hereditary for several generations in the family of the defendant, and had been developed in him by an injury to his head, though it was manifested only in an uncontrollable propensity to a singular species of theft. Inability to distinguish between right and wrong, as to the act charged as a crime, is the generally accepted, and in some states the exclusively accepted, test of such insanity as exempts from criminal responsibility. Commonwealth v. Rogers, 7 Metc. (Mass.), 500; State v. Johnson, 40 Conn. 136; Willis v. The People, 32 N. Y. 717; Flaunigan v. The People, 52 N. Y. 467; State v. Spencer, 1 Zabriskie, 196; Commonwealth v. Mosler, 4 Barr. 267; Ortwein v. Commonwealth, 76 Penn. St. 414; McAllister v. State, 17 Ala. 434; Bovard v. State, 80 Miss. 600; Dove v. State, 3 Heiskell (Tenn.), 348; Loeffner v. State, 10 Ohio St. 598; Blackburn v. State, 23 Ohio St. 146; Hopps v. The People, 31 I11. 385; State v. Huting, 21 Mo. 476; People v. McDonnell, 47 Cal. 134; United States v. McGlue, 1 Curtis C. C. 8. The insanity of delusion is recognized in Commonwealth v. Rogers, 7 Metc. (Mass.), 500. The insanity of uncontrollable impulse produced by mental disease is recognized in Commonwealth v. Rogers, 7 Metc. (Mass.), 500; State v. Johnson, 40 Conn. 136; Commonwealth v. Mosler, 4 Barr. 267; People v. Sprague, 2 Parker's Crim. Cas. 43; Scott v. Commonwealth, 4 Metc. (Ky.), 227; Smith v. Commonwealth, 1 Duvall, 225; Kriel v. Commonwealth, 5 Bush, 365; Shannahan v. Commonwealth, 8 Bush, 464; Stevens v. State, 31 Ind. 485; State v. Felter, 25 Iowa, 67. The Supreme Court of New Hampshire, in State v. Pike, 49 N. H. "he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if, under the influence of his delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defense, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment."(m) After laying down, as above, what may be called the "particular right and wrong theory," they abandon it here, and also in another answer, where, still dealing with partial delusions, they express their opinion that "notwithstanding the party accused did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable if he knew, at the time of committing 399, and State v. Jones, 50 N. II. 369, discarded all tests of insanity as rules of law. It is there held that insanity is a mental disease; neither delusion nor knowledge of right and wrong, etc., is, as a matter of law, a test of mental disease; but all symptoms and tests of mental disease are purely matters of fact, to be determined by the jury; whether the defendant had a mental disease, and whether the act charged as a crime was the product of such disease, are the decisive questions, and they are questions of fact for the jury. In harmony with this, the same court has adopted, as a rule of evidence, that it is not competent for a witness who is not an expert to give his opinion as to the sanity of the defendant, though such opinion is based upon the witness' observation of the appearance and conduct, and the facts so observed are in evidence. Boardman v. Woodman, 47 N. HI. 120; State v. Pike, 49 N. H. 399. The student is referred also to 1 Wharton & Stille's Medical Jurisprudence, Browne's Medical Jurisprudence of Insanity, Reese's American edition of Taylor's Medical Jurisprudence, and the note to Commonwealth v. Rogers, 1 Leading Crim. Cas. 10). (m) "Here is an unhesitating assumption that a man, having an insane delusion, has the power to think and act in regard to it reason ably; that, at the time of the offense, he ought to have and exercise the knowledge and self-control which a sane man would have and exercise, were the facts with respect to which the delusion exists real; that he is, in fact, bound to be reasonable in his unreason, saue in his insanity."-Maudsley, 97. such crime, that he was acting contrary to the law of the land." (n) It has been held hat an apparent absence of motive for the deed is not any ground for inferring an irresistible and insane impulse; and that though there be an irresistible impulse, if there be no real delusion as to any fact, it affords no defense.(0) Why a man should be punished for what he can not resist, it is, perhaps, hard to comprehend. As to medical evidence on the question of insan'ty—a witness of medical skill may be asked whether, assuming certain facts, proved by other witnesses, to be true, they, in his opinion, indicate insanity. But he can not be asked, although present in court during the whole trial, whether from the evidence he has heard he is of opinion that the prisoner, at the time he committed the alleged act, was of ansound mind; for such a question, unlike the previous one, involves the determination of the truth of the evidence, which it is for the jury to determine.(p) (1) . The law presumes sanity; and, therefore, the burden of the proof of insanity lies on the defense.(2) Even in the case of an acknowledged lunatic, the offense is presumed to have been committed in a lucid interval, unless the contrary be shown. It is for the petty jury to decide whether a case of insanity, recognized as such by the law, has been made out. The grand jury have no right to ignore a bill on the ground of insanity. The jury are obliged to attend (n) For strictures on these principles of "exquisite inhumanity," see remarks of Judge Ladd in State v. Jones, 50 N. H. 369. (0) R. v. Haynes, 1 F. & F. 666; R. v. Barton, 3 Cox, 275. (1) In the United States, generally, unprofessional witnesses may give in evidence their opinion as to the sanity of the defendant, provided they have been personally acquainted with him, and they also give in evidence the facts upon which this opinion is based. But in Maine (Wyman v. Gould, 47 Maine, 159), New Hampshire (Boardman v. Woodman, 47 N. H. 120), Massachusetts (Commonwealth v. Fairbanks, 2 Allen, 511), and Mississippi (Caleb v. State, 38 Miss. 722), it is held, on the contrary, that persons not experts can not so testify. (2) See note, post p. 362, on burden of proof. to the directions of the judge as to what is called the law on the subject, but which is rather an erroneous opinion as to a matter of fact. There seems to be no sound reason for withdrawing any part of the question of insanity from the jury-a thing which is done when the artificial test of responsibility is propounded to them.(2) When, on the part of the defense, the insanity of the prisoner at the time of the commission of the offense is given in evidence, and the jury acquit him, they must find specially whether he was insane at the time of the commission of the offense, and declare whether they acquit him on that ground. If they so acquit him on the ground of insanity, the court will order him to be kept in proper custody till the queen's pleasure be known; and the queen may order the confinement of such person during her pleasure.(r) So if a person indicted is insane, and upon arraignment is found insane by a jury impaneled to discover his state of mind, so that he can not be tried; or if on his trial, or when brought up to be discharged for want of prosecution, he appears to the jury to be insane, the court may record such finding, and order him to be kept in custody till the queen's pleasure be known.(s) In accordance with the dictates of humanity no criminal proceedings can be taken against a man while he is non compos mentis. Thus, if a man commit murder and become insane before arraignment, he can not be arraigned; if after trial before judgment, judgment can not be pronounced; if after judgment before execution, execution will be stayed.(t) Drunkenness.-Drunkenness is sometimes termed dementia affectata-acquired madness. A state of voluntary in (7) "If the tests of insanity are matters of law, the practice of allowing experts to testify what they are should be discontinued; if they are matters of fact, the judge should no longer testify without being sworn as a witness, and showing himself qualified to testify as an expert."-Judge Doe in State v. Pike, 49 N. H. 399. (r) 39 and 40 Geo. 3, c. 4, 8 1; 3 and 4 Vict., c. 54, 2 3. (s) 39 and 40 Geo. 3, c. 94, 2. (t) 1 Hale, P. C. 34. toxication is not any excuse for crime.(u) It is true that the sanctions of the law can not be supposed to exert an equal influence on the mind and conduct of a person in this state; but the initiation of the crime may be said todate back to the time when the offender took steps to deprive hin.self of his reason. It is evident that if drunkenness were allowed to excuse, the gravest crimes might be committed with impunity by those who either counterfeited the state or actually assumed it. It would be incorrect to say that the consideration of drunkenness is never entertained in the criminal law. Though it is no excuse for crime, yet it is sometimes an index of the quality of an act. Thus, it may be taken into account by the jury when considering the motive or intent of a person acting under its influence; for example, on the question whether a person who struck a blow was excited by passion, or acted from ill-will; whether expressions used by the prisoner were uttered with a deliberate purpose, or were merely the idle expressions of a drunken man.(c) So M. could not have intended suicide if she were so drunk that she did not know what she was doing.(y) Of course if the drunkenness be involuntary-as, for example, if it be by the contrivance of the prisoner's enemies -he will not be accountable for his action while under that influence. Also, if drunkenness has become habitual and confirmed, so as to produce the disease of insanity, this insanity, equally with other kinds of mental disease, may be pleaded in defense. [The note to United States v. Drew, 1 Leading Criminal Cases (2 ed.), 131, presents a full discussion of the cases upon drunkenness considered as a defense in a criminal prosecution. The note closes with the following conclusions: "First. That fixed insanity, or delirium tremens, though the result of voluntary dissipation, is as much an excuse for crime as any other form of insanity. Second. That voluntary intoxication, not depriving the party of all knowledge of (u) v. Pearson's Case, 2 Lew. C. C. 144. |