"The true test lies in the word 'power.' Has the defendant in a criminal case the power to distinguish right from wrong, and the power to adhere to the right and avoid the wrong. Has the defendant, in addition to the capacities mentioned, the power to govern his mind, his body and his estate." Com. v. Haskell, 2 Brewst. 491, 4 Am. L. Rev. 240. See also State v. Pike, 49 N. H. 399, 6 Am. Rep. 533, 4 Am. L. Rev. 245.

The result is that the "right and wrong test," as it is sometimes called, which, it must be remembered, itself originated with the medical profession in the mere dawn of the scientific knowledge of insanity, has been condemned by the great current of modern medical authorities, who believe it to be "founded on an ignorant and imperfect view of the disease." 15 Enc. Brit. (9th ed.) title Insanity; Parsons v. State, 81 Ala. 577, 60 Am. Rep. 193.

e. Rule of the French and German Criminal Codes Stated. -The Code of France provides: "There can be no crime or offense if the accused was in a state of madness at the time of the act." For some time the French tribunals were inclined to interpret this law in such a manner as to follow in substance the law of England. But that construction has been abandoned, and the modern view of the medical profession is now adopted in that country.

The criminal code of Germany contains the following provision which is said to have been the formulated result of a very able discussion by both the physicians and lawyers of that country: "There is no criminal act when the actor at the time of the offense is in a state of unconsciousness, or morbid disturbance of the mind, through which the free determination of his will is excluded." 9 Enc. Brit. (9th ed.), citing Crim. Code, Germany, § 51, R. G. B. Parsons v. State, supra.

f. Dissenting Views of Chief Justice Stone.-Chief Justice Stone in his dissenting opinion in this highly instructive case of Parsons v. State, 81 Ala. 577, 60 Am. Rep. 193, note, summarizes his views on this question of insanity as follows:

"1. Insanity, when relied on as a defense to a prosecution for crime, is a mixed question of law and fact.

"2. It is a perfect defense to an accusation of crime, if the accused, at the time he committed the act, was afflicted with a mental disease to such extent as to render him incapable of determining between right and wrong, or of perceiving the true nature and quality of the act done.

"3. When it is satisfactorily shown that the accused was mentally diseased at the time he did the act charged as an offense, and that he did the act in consequence solely of such mental disease, without which it would not have been done, this is a complete defense, even though the defendant knew the act was wrong.

"4. When at the time of committing the act charged, the defendant was laboring under a disease of the mind, known as delusion, illusion, or hallucination, and the act done was solely the result of such mental disease, connected with and growing out of it as effect follows cause, and without which the act would not have been done, the defendant should be acquitted on the plea of insanity. Whart. Crim. Ev. § 336; 2 Greenl. Ev. § 372.

"5. No form of moral or emotional insanity is a defense against criminal accusation.

"I differ with my brother Somerville in the interpretation of some of the legal authorities he relies on as supporting his views, and as to others, in the estimate he places upon them as authority. This court has repudiated the doctrine of moral insanity as a defense for conduct otherwise criminal; and we hold that insanity is a defense to be affirmatively established by proof. It is not enough that a reasonable doubt of sanity is engendered. Boswell v. State, 63 Ala. 307, 35 Am. Rep. 20; Ford v. State, 71 Ala. 385. Of the judicial authorities relied on by him, the following cases hold that the defense of insanity is made good, if the testimony raises a reasonable doubt of its existence. Some of them go so far as to hold that when any evidence of insanity is produced, the burden is then cast on the prosecution to establish sanity beyond a reasonable doubt. State v. Jones, 50 N. H. 369, 9 Am. Rep. 242; Bradley v. State, 31 Ind. 492; Hopps v. People, 31 Ill. 385, 83 Am. Dec. 231; Cunningham v. State, 56 Miss. 269, 21 Am. Rep. 360; State v. Johnson, 40 Conn. 136."

The learned judge proceeds to dissect the cases bearing upon the subject, and the practitioner who is confronted with any problem associated with the topic of insanity would do well to consult the following cases: State v. Felter, 25 Iowa, 68; State v. Hockett, 70 Iowa, 442; Hopps v. People, supra; Dunn v. People, 109 Ill. 635; Chase v. People, 40 Ill. 353; Bradley v. State, 31 Ind. 492; Walker v. State, 102 Ind. 502; Harris v. State, 18 Tex. App. 287; Smith v. Com. 1 Duv. 224; Kriel v. Com. 5 Bush, 362; Cun

ningham v. State, 56 Miss. 269, 21 Am. Rep. 360; United States v. McGlue, 1 Curt. C. C. 1; Com. v. Rogers, 7 Met. 500, 41 Am. Dec. 458; Dejarnette v. Com. 75 Va. 867; Coyle v. Com. 100 Pa. 573, 45 Am. Rep. 397; State v. Johnson, supra; Anderson v. State, 43 Conn. 514, 21 Am. Rep. 669; State v. Hoyt, 46 Conn. 330; State v. Pike, 49 N. H. 399, 6 Am. Rep. 533; State v. Mowry, 37 Kan. 369; State v. Nixon, 32 Kan. 205; State v. Pagels, 92 Mo. 300.

g. A Cautionary Paragraph.-I cannot leave this highly important subject without a cautionary paragraph. It must be steadily borne in mind, that great contradiction prevails in the judicial comment; and notwithstanding repeated adjudication from very able courts, this contradiction is far from even suggesting ultimate harmony. The elaborate and ingenious argument of Judge Somerville is based upon critical study of the subject, and is a very plausible presentation of the case. We should avoid the least tendency to generate an animosity fatal to a just estimate of either as it is from the coalescence of antagonistic ideas, each containing its modicum of truth that there arises a higher development and a more perfect law.

410. The Problem Considered by Dr. Ordronaux.-“A series of decisions develop the doctrine that insanity must be established by a preponderance of evidence, although not necessary to be established beyond a reasonable doubt. This qualification softens somewhat the rigor of the original rule, but does not relieve it entirely of its injustice. A preponderance of evidence in relation to establishing a matter of inference even, as in the case of establishing such inference beyond a reasonable doubt, is a conclusion quite as difficult for a jury to arrive at as any other disputed fact about which no positive proof can be adduced. party's insanity is inferred by one set of experts; it is denied by another-both sets drawing their conclusions from the same premises, but each under a different angle of vision. Suppose there are seven experts called, three of whom testify to sanity and four to insanity in the prisoner. How much shall those three, added to the general presumption of sanity, weigh as against the four?

A

"This problem of what constitutes a preponderance of evidence in favor of insanity will be found full of uncertainties and hedged about with doubts on every side. Its complete solution always involves the necessity of reasoning more or less in a circle, and,

besides, it opens the door to a mass of speculative testimony whose chief mission would seem to be the diffusion of useless knowledge and the confusion of the human understanding.

"A very recent and decided reaction has accordingly been taking place against this attempt to formularize the sources of human intellection, so as to reduce human conduct to a personal equation born alone of flesh and chemical forces. And courts have, through sheer weariness and despair of both physical and metaphysical formulæ, as keys to this mental riddle, begun to adopt rules of kindred evidence, in issues of insanity, to those adopted in other matters involving presumptions of human guilt. Hence if there be a reasonable doubt of a defendant's guilt, the jury must acquit, and if, by a parity of reason, there be a reasonable doubt of his sanity, they must, in like manner, acquit."

From a report of commissioners in lunacy appointed under a special commission by Governor Dix, the evidence in favor of a confessed murderer was to the effect that, through the influence of his epileptic constitution, and the grossest practice of selfabuse, his brain was in a state of continuous erethism. His mind has not enough intensity of power to localize itself upon any one idea or to perform acts of self-introspection. Disease has degraded him too far for that. He has an unsteady gait, and otherwise reveals obscure symptoms of that form of paralysis known as locomotor ataxy. He could not, therefore, be said to have yet arrived at that condition of diathetic permanency necessary to constitute complete insanity at law. He simply exhibited a form of imbecility, based upon an epileptic diathesis, in which strong animal propensities might bring on at any moment a convulsion, both mental as well as bodily.

Upon this statement of facts, and under the necessities of the legal conditions surrounding the prisoner, the governor commuted his sentence to imprisonment for life. Re Stauderman, 3 Abb. N. C. 191; People v. Beno Ville, 3 Abb. N. C. 195.

*NOTE.-The above extract is from an able article by John Ordronaux, M. D., for many years the New York State Commissioner in Lunacy, and Professor of Medical Jurisprudence in the Law School at Columbia College. The article was first published in volume 1 Criminal Law Magazine, p. 31, under the title of "The Plea of Insanity as an Answer to an Indictment." It is a suggestive and philosophic review of an obscure and confusing topic, and will well merit perusal, both for the information that it contains, and the research that it stimulates.

411. The Guiteau Case Examined. The most exhaustive review of modern criminal law fails to disclose a case of more absorbing interest, or one in which the entire technique of legal science in this specalized branch has been more effectively displayed, than in a celebrated trial of President Garfield's assassin. The rulings of Judge Cox on that occasion will ever be regarded as safe expositions of the modern law regulating one side of this controversy, and as epigramatic statements of fundamental rules, that underlie and support the entire fabric of criminal jurisprudence. His introductory remark:-"No one can feel more keenly than I do the grave responsibility of my duty; and I feel that I can only discharge it by a close adherence to the law as it has been laid down by its highest authorized expounders,❞—will sufficiently indicate the temper with which he approached the task of charging the jury; and those acquainted with his scholarly attainments, his wide research in criminal law and unrivaled felicity of judicial expression, will appreciate and commend the contribution he has made to this branch of our jurisprudence. The following extracts are elucidative of the topic under review, and are taken from that celebrated charge.

a. Abuse of Insanity as a Defense. The defense of insanity has been so abused as to be brought into great discredit. It has been the last resort in cases of unquestionable guilt, and has been the excuse of juries for acquittal, when their own and the public sympathy have been with the accused, and especially when the provocation to homicide has excused it according to public sentiment but not according to law. For these reasons, it is viewed with suspicion and disfavor, whenever public sentiment is hostile to the accused. Nevertheless, if insanity be established to the degree that has been already, in part, and will hereafter further be explained, it is a perfect defense to an indictment for murder, and must be allowed full weight.

A man does not become irresponsible by the mere fact of being partially insane. Such a man does not take leave of his passions by becoming insane, and may retain as much control over them. as in health. He may commit offenses, too, with which his infirmity has nothing to do. He may be sane as to his crime, understand its nature, and be governed by the same motives in regard to it as other people; while on some other subject, having no relation to it whatever, he may be subject to some delusion.