Atl. 391), tried in 1899, Chief Justice Lore stated in his charge to the jury that if the defendant "had sufficient capacity to know that that act was wrong, and the power to choose whether he would do it or not, he is responsible for it, and for all its fatal consequences."

Kentucky is another State which has been converted to the doctrine of insane impulse. Some of the earlier Kentucky decisions recognized the doctrine of moral insanity, but in 1889, in the case of Montgomery v. Commonwealth, the highest court of Kentucky came out squarely in favor of the power of control test. Judge Bennett, who delivered the opinion, stated that if a person has knowledge of right from wrong, he must also have sufficient will power to control and govern his actions.

doing, and that it was wrong, and a violation of the law, then he is liable to punishment for it like any other person." The jury brought in a, verdict of murder in the second degree. Justice Ray, in giving the decision of the Indiana Supreme Court, declared that the test of insanity given by the trial court was erroneous. He stated that "Man, under the influence of disease, may know the right, and yet be powerless to resist the wrong." In further explanation of his position he said that "the wellknown exhibitions of cunning by persons admitted to be insane, in the perpetration of an illegal act, would seem to indicate comprehension of its evil nature and legal consequences, and yet the power of self-control being lost from disease, there can be no legal responsibility." The judgment of the lower court was, therefore, reversed and a new Montana is another State which has come out trial granted. The case of Bradley v. State, to- as an ardent supporter of the power of control test. gether with that of Stevens v. State (31 Ind. 485), In 1899, in the case of State v. Peel (23 Mont. 358), brought the Supreme Court of Indiana squarely the Montana Supreme Court stated that "when one into line in favor of the power of control test. The commits an act, otherwise criminal, even if he has test is reaffirmed in Goodwin v. State (96 Ind. 550). a knowledge that it is wrong, if he is under an In 1889, in the case of Plake v. State (121 Ind. 433), irresistible impulse, which is the result of an overthe Indiana court held that " a person may have powering mental disease, and which he cannot sufficient mental capacity to tell right from wrong, control, he is not criminally responsible." Chief and to be able to comprehend the nature and conse-Justice Brantly stated that it is "the more humane quences of his act, and yet be not criminally re- doctrine, and in accord with the more advanced sponsible for his acts, for, if the will power is so state of medical science and judicial reason, though impaired that he cannot resist an impulse to com- courts of high standing repudiate it." mit a crime, he is not of sound mind."

Alabama has also overruled the McNaghten test and recognizes the doctrine of irresistible impulse. In Parsons v. State (81 Ala. 577), a case decided in 1886, Judge Somerville made one of the most vigorous attacks that any jurist has ever made upon the McNaghten test. Judge Somerville said if the victim had lost the power to choose between tight and wrong, although he perceived it, he was not criminally responsible. He referred to the diffi

The courts of Michigan recognize the doctrine of irresistible impulse. In the case of People v. Durfee (62 Mich. 487), decided in 1886, the circuit judge in his charge to the jury stated "that if, by reason of disease, the defendant was not capable of knowing he was doing wrong in the particular act, or if he had not the power to resist the impulse to do the act by reason of disease or insanity, that would be an unsound mind." Justice Sherwood in comment-culty of applying this test, but compared it to the ing on those instructions held that they were in accordance with the doctrine held by the Michigan court. In 1878, in People v. Finley (38 Mich. 482), Chief Justice Campbell said in the opinion: "The court in regard to insanity charged that the respondent would be blameless in law, first, if by reason of insanity he was not capable of knowing he was doing wrong, or second, if he had not power to resist the temptation to violate the law. This was correctly charged."

fact that while no one can say where twilight ends or night begins, yet there is ample distinction between day and night.

New Hampshire has repudiated the McNaghten test and adds one more to the list of States that recognize the existence of an irresistible impulse. In State v. Wier, a New Hampshire case, arising in Grafton county in 1864, Chief Justice Bell, in his charge to the jury, gave the rule as to a capacity to distinguish between right and wrong, and then said:

The courts of Delaware were among the first to" to which I add, sufficient mental power to conendorse the power of control test and they still sturdily uphold it. In 1888, in State v. Reidell (14 Atl. 550), Chief Justice Comegys, in giving the instructions to the jury, said: "The question is not, simply, whether one who kills another was capable, at the time, of distinguishing or knowing the difference between right and wrong with reference to his fatal act, but also whether he was then capable of controlling himself from the commission of it." In another Delaware case, State v. Cole (45

trol the sudden impulses of his own disordered mind." Bell declared that the distinguishing test of insanity was "the inability to control the actions of a man's mind." Chief Justice Bell was the brother of an eminent New England alienist who held the office of superintendent of the McLean Asylum for a long period. In 1871, in the case of State v. Jones (50 N. H. 369), the New Hampshire Supreme Court took the advanced ground that if a party had an irresistible impulse, which impelled

him to commit the deed, he was not responsible. Whether an impulse was irresistible the court said was a question of fact for the jury.

Arkansas is a recent recruit to the power of control test. In 1898, in the case of Green v. State (64 Ark. 523), the Supreme Court of Arkansas put itself on record as favoring the power of control test. Justice Battle, in giving the decision, commended the opinion given in Parsons v. State (81 Ala. 577), and held that a person may have a knowledge of right and wrong as to the act in question, and yet be irresponsible for a crime committed by him. The courts of Scotland formerly endorsed the McNaghten test, but have now become advocates of the power of control test.

wrong, to adhere to the one or avoid the other, he has not the capacity to form a criminal intent." As the trial court had given a less liberal test the judgment was reversed. The rule given by the Supreme Court of Georgia is merely a development of the delusion theory advocated by Erskine in the Hadfield case. Erskine urged that delusions were an exception to the general rule holding a man responsible if he was capable of distinguishing between right and wrong in the abstract. The Georgia doctrine holds delusions to be an exception to the general rule that a person is liable for his act if he knew the difference between right and wrong as to the act in question. As Erskine's theory was preferable to In 1874, in Miller's the test requiring a knowledge of right and wrong case (3 Cowper, 16), the lord justice, Clerk Mon- in the abstract, so is the Georgia doctrine preferable creiff, in his charge to the jury, said that "a man to the rule requiring a knowledge of right and may be entirely insane, and yet may know well enough that an act which he does is forbidden by law. It is not a question of knowledge but of soundness of mind. If the man have not a sane mind to apply his knowledge, the mere intellectual apprehension of an injunction or prohibition may stimulate his unsound mind to do an act simply because it is forbidden, or not to do it because it is enjoined. He may form and understand the idea of A still different test of responsibility is that given right and wrong and yet be hopelessly insane." In by the Supreme Court of Illinois. In Lilly v. Peo1876, in Macklin's case (3 Cowper, 258), Lord Mon-ple (148 Ill. 467), a case decided in 1894, Justice crieff reiterated the views which he had advanced Wilkin, in delivering the opinion, reaffirmed the in Miller's case two years before. He said that at test of responsibility given by the Illinois court in one time lawyers were apt to avoid all difficulty by inquiring whether a prisoner knew right from wrong: and as, in point of fact, except in acute mania or idiocy, there are very few lunatics who do not know right from wrong in the sense of being capable of appreciating or even acting on the distinction, much unreasoning inhumanity has

been the result of this unscientific maxim."

wrong as to the particular act. But as the Erskine theory was rejected because of its incompleteness, in that delusions do not cover all possible cases of insanity, the same fate must be accorded to the doctrine of the Georgia courts, for the same reason. The rule in Georgia is a distinct advance over the McNaghten test, but it is not as complete as the power of control test.

earlier decisions, and stated that the unsoundness of mind which will relieve from responsibility "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." The Illinois test is different from The power of control test, therefore, numbers that given by any other State. It jumbles together among its supporters the courts of Scotland, the the ideas of irresistible impulse, power of control, United States Supreme Court, and the highest and a knowledge of right and wrong in a hopeless courts in the States of Alabama, Arkansas, New confusion. The Illinois test recognizes that there Hampshire, Delaware, Michigan, Kentucky, Indi- may be an irresistible or uncontrollable impulse. ana, and Montana. The leaven is slowly working The defenders of the McNaghten test usually deny and new courts are gradually coming to recognize the existence of an irresistible impulse. But it is the doctrines of insane impulse. It is a matter of encouragement that so many courts have already recognized it, and the outlook is bright for the future.

The next test of responsibility that we will consider is the one endorsed by the Supreme Court of Georgia. The Georgia court gives the rule holding a man responsible for his act if he was capable of distinguishing between right and wrong as to that act, but makes cases of delusion an exception to that rule. In 1898, in Flanagan v. State (103 Ga. 619), Chief Justice Simmons expressed it thus: "If a man has delusions produced by a disease of the mind, and by reason of those delusions his will is completely over-mastered so that he has no power, even though he can distinguish between right and

difficult to see wherein the Illinois rule is an improvement over the McNaghten rule, for by the doctrine of the Illinois courts before a person can be acquitted on the ground of insanity he must not only be deprived of the power of choosing between right and wrong, but also his sense of right and wrong as to the particular act must be obliterated. Now it is obvious that if a person's sense of right and wrong, as to a particular act, is obliterated, he is deprived of the power of choosing between the right and wrong. The clause added by the Illinois court, "and depriving the accused of the power of choosing between them," is a superfluity and merely tends to confusion. If the conjunction "or" had been used in that clause instead of “and,” the result would have been different, for it would

then have been a statement of the power of the power of control test. As it stands, the Illinois test has little to recommend it. Its effect is the same as the McNaghten test, but it is more confusingly stated. At first glance, it seems to be favorable to the doctrine of uncontrollable impulse, but a closer inspection shows that it is not. The next time the Supreme Court of Illinois has a chance it is to be hoped that it will abandon its present confusing position.

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help. When courts recognize that insanity exists, they take an illogical and untenable position when they state that it does not relieve the prisoner from complete criminal responsibility. A mitigation of the offense will not suffice. The defendant does not deserve the brand of the criminal. The doctrine that holds that insanity mitigates but does not excuse crime, therefore, deserves to be repudiated. The doctrine of culpable homicide, that is, murder, with extenuating circumstances, is recognized in the modern Scotch law. The Scotch judges do not apply this doctrine of reducing the degree of the crime merely to cases of drunkenness, but to any case in which the weakened intellect of the accused is not sufficient to acquit him of entire responsibility, but still should be considered in measuring the enormity of the offense.

Some authorities uphold the doctrine that certain grades of insanity, though not excusing from criminal responsibility, will, nevertheless, lessen the degree of the crime. There were writers on the civil law who long ago contended that where persons were not absolutely insane, but were insane to a certain degree, that they would not be excused from all punishment, but that their punishment In 1878, in Grange's case (4 Cowper, 86), the dewould be mitigated. Sir George McKenzie, a fendant, while suffering from delirium tremens, former Scotch writer, who advocated the total ac- killed a Scotch constable. Lord Deas, in his quittal on the ground of insanity only when the charge to the jurors, said that whether delirium insane persons were absolutely furious, gives a dis- tremens ever amounted to insanity was a question cussion of the doctrine of the writers on the civil for them to decide. He also instructed them "that law. a weak or diseased state of mind, not amounting "It may be argued," says McKenzie, "that since to insanity, might competently form an element to the law grants a total immunity to such as are ab- be considered in the question between murder and solutely furious, that, therefore, it should, by the culpable homicide." The verdict of the jury was rule of proportion, lessen and moderate the punish- that they found Granger "guilty of culpable homiments of such as, though they are not absolutely cide, believing the act to have been committed mad, yet are hypochondriac and melancholy to such when he was laboring under delirium tremens." a degree that it clouds their reason. That such as Granger was sentenced to five years of penal servishow any act of resentment or revenge in the wrong tude, the shortest term possible under the law. they do, may be punished with some degree of In 1876, in McLean's case (3 Cowper, 334), the severity, since they showed some degree of judg-lord justice clerk charged the jury that aberrament." McKenzie referred to the case of a mad- tions or weakness of intellect, not amounting to man executed by order of parliament of Paris for insanity, may legitimately be taken into account as having killed a person by whom he had been struck modifying the character and punishment of a crimitwo days before. His execution was universally nal offense." condemned by lawyers, but McKenzie said that "since he did show memory and revenge in that act, he might have been punished justly to some moderate degree." The only court in the United States which upholds the view that there may be a grade of insanity which will lessen the degree of the crime is the Supreme Court of Connecticut. In Anderson v. State (43 Conn. 514) Judge Carpenter referred to the fact that courts have been slow in giving recognition to moral insanity as a defense to crime, and then boldly took the position that if a jury was satisfied that moral insanity existed in a given case, it should consider the moral insanity as determining the degree of the crime.

The doctrine of culpable homicide taken by the Scottish courts is not inconsistent or irreconcilable with the power of control test. The courts of Scotland uphold both, and the two do not conflict. The weakness of intellect that mitigates a crime in Scotland is a weakness that does not amount to insanity. If it is a case of insanity, embraced within the scope of the power of control test, the defendant is entitled to an acquittal by the Scotch law. You may say that Granger should have been ac quitted because delirium tremens amounts to insanity. But Lord Deas stated that delirium tremens was not legally regarded as a form of insanity by any arbitrary rule of law. It was a The civil law writers, McKenzie and Judge question of fact for the jury, and the jury decided Carpenter, have all attempted to compromise in Granger's case that it did not amount to insanwhere no compromise is possible. If the prisoner ity. If the jury erred, it was not through any was insane when the deed was done, the insanity fault of the law. The modern Scotch doctrine of should be a complete defense. It is illogical and culpable homicide, referring, as it does, only to inconsistent to trace the act to his insanity and yet | cases which do not amount to insanity, is not within to hold him criminally responsible. It results in the scope of this article, which is solely confined punishing a man for what the courts, by admitting to cases of insanity. Whether the doctrine is wise the existence of the insanity, admit he could not or foolish, it is not our purpose to discuss. As it

is neither included under nor conflicts with the subjugate the intellect, control the will, and render power of control test, it may be passed by as for- it impossible for the party to do otherwise than eign to our subject.

The next doctrine to be considered is that of moral insanity. Pinel and others define moral insanity to be that state which exists when the mind is sane but the moral faculties are diseased. Wharton and Stille, in their Medical Jurisprudence, say that “irresistible impulse is not moral insanity, defining moral insanity to consist of insanity of the moral system, co-existing with mental sanity. Moral insanity, as thus defined, has no support, either in psychology or law."

Whether moral insanity, as defined by the alienists, is a "groundless theory," as one judge expressed it, or whether it is entitled to the recognition that many physicians ask for it, is needless for us to discuss. The doctrine of moral insanity has not been incorporated into the decisions of either Scotland or England, and in this country it has been upheld in the decisions of only a small number of inferior courts and in the highest courts of but a few of the States, and in those instances the judges obviously meant to express the same idea as would have been expressed, had they used the words irresistible or uncontrollable impulse or had given the power of control test. In Anderson v. State, the Connecticut case previously referred to, the court held that moral insanity might be taken into account as determining the degree of the crime. By moral insanity the Connecticut court meant the knowledge of right, but the lack of power to choose it.

The Pennsylvania courts have, in several instances, referred to moral insanity. In Freeth's case, tried before the Criminal Court of Philadelphia in 1858, Judge Ludlow stated that moral or homicidal insanity seemed to be "an irresistible inclination to kill, or to commit some other particular offense." Judge Ludlow charged the jury in that case that if Freeth " was actuated by an irresistible inclination to kill, and was utterly unable to control his will or subjugate his intellect, and was not actuated by anger, jealousy, revenge and kindred evil passions," he was entitled to an acquittal. Although Judge Ludlow used the term moral insanity, the subsequent discussion that he gave showed that he meant to convey exactly the same idea as to a test of responsibility as is covered by the power of control test.

yield." In the following year, in Smith v. Commonwealth (1 Duvall, 224), a fuller discussion was given of the doctrine of moral insanity by Judge Robertson, in delivering the opinion of the Court of Appeals. Judge Robertson stated that a man may be impelled to do an act which he knows is forbidden by both moral and human law. "Yet, nevertheless," he continued, his will being paralyzed or subordinated, the uncontrollable appetite necessitates an act which he knows to be wrong and justly punishable. But, as he was a helpless puppet in the hands of Briarean passions, he is no more a fit subject of punishment than an animal without a controlling will." Judge Robertson styled this moral insanity, but other jurists would call it irresistible impulse. As the trial court had given the test, holding a man responsible if he knew the act was wrong, the Court of Appeals reversed the judgment and the case was remanded for a new trial.

The doctrine of moral insanity, as advocated by the Kentucky court, was, in reality, the same doctrine that they now indorse, when they expressly state the power of control test. It is the same idea under a different name. Clevenger says, in his exhaustive work on the Medical Jurisprudence of Insanity, published in 1898, that "the doctrine that moral insanity going to the extent of destroying free agency and moral responsibility excuses crime when established by satisfactory evidence, is applied by the courts of many of the States, and seems to be gaining ground." On the other hand, Taylor, on page 780 of his Medical Jurisprudence, says that "moral insanity is not admitted as a bar to responsibility for civil or criminal acts, except in so far as it may be accompanied by intellectual disturbance." The doctrine of moral insanity that Clevenger states is gaining ground is not usually referred to by the courts by the name of moral insanity. In those courts the power of control test is usually given. Whether the moral insanity that Clevenger and many of the alienists refer to must be accompanied by intellectual disturbance, as Taylor indicates, before it will hold a man irresponsible, it is hardly worth our while to discuss. The only moral insanity that has been considered by the courts is included in the power of control test. Perhaps the few courts that referred to moral A few Kentucky decisions indorsed the doctrine insanity as a proper test of responsibility, misinof moral insanity, but in 1889, in the case of Mont- terpreted the meaning that is given to moral gomery v. Commonwealth, the Kentucky court insanity by the physicians. If they did, we must abandoned the expression, moral insanity, and gave classify those cases according to the real meaning the usual statement of the power of control test. expressed. As those cases are in harmony with In 1863, in Scott v. Commonwealth (61 Ky. 227), the doctrine of irresistible impulse, they may be Chief Justice Duvall, in the course of the opinion, properly classified as illustrations of that doctrine. indorsed the statement given by Judge Lewis in The test of responsibility that we are advocating a case quoted by Wharton and Stille, that "moral is the power of control test. If the doctrine of insanity relieves from accountability to human laws, moral insanity is not inconsistent with that test, where its propensities exist in such violence as to the discussion of it may be dismissed as irrelevant.

If it does conflict with that test, in so far as it it have not been diligent, but because it does not conflicts, we refuse to accept it. exist."

The Supreme Court of Pennsylvania has adopted Insanity is now almost universally regarded as a rule of responsibility somewhat different from that being a disease. It is true that no later than 1862 of any other State. In 1882, in Coyle v. Common- the lord chancellor of England said in the House wealth (100 Pa. St. 573), the trial court had quoted of Lords that "the introduction of medical opinions with approval the words of Chief Justice Gibson and medical theories into this subject has proceeded in the case of Commonwealth v. Mosler (4 Barr, upon the vicious principle of considering insanity 264 [decided in 1846]), where he said that “there as a disease." But, notwthstanding the opinion may be an unseen ligament pressing on the mind, of the lord chancellor to the contrary, it is generdrawing it to consequences which it sees but cannot ally accepted at the present time that insanity is avoid, and placing it under coercion, which, while a disease. Being a disease, it is claimed that there the results are clearly perceived, is incapable of can be no definite and arbitrary test which will fit resistance. The doctrine which acknowledges this all cases. Dr. Ray, in his Medical Jurisprudence mania is dangerous in its relations and can be recog- of Insanity, in speaking of insanity, said that "the nized only in the clearest cases. It ought to be fact of its existence is never established by any shown to be habitual or at least to have evinced single diagnostic symptom, but by the whole body itself in more than a single instance." Justice of symptoms, no particular one of which is present Mercur, in delivering the opinion of the Pennsyl-in every case." Judge Somerville, of Alabama, asvania Supreme Court, in Coyle v. Commonwealth, serts, in Parsons v. State, that "the courts cannot reaffirmed this language of Chief Justice Gibson, upon any sound principle undertake to say what saying that "it certainly is not requiring too much are the invariable or infallible tests of such disease." to hold that it shall be shown in more than a The courts of Alabama and New Hampshire favor single instance. We know no later case in this the theory of having each case decided on its own State where the precise question has been ruled merits. In State v. Jones (50 N. H. 369) the otherwise." The Pennsylvania doctrine cannot be Supreme Court of New Hampshire said that it was accepted as a satisfactory solution of the problem. a question of fact for the jury whether or not an The requirement that the insanity should be impulse was irresistible. Judge Somerville favored "habitual or at least to have evinced itself in more the idea of having medical experts to give proof of than a single instance," is not consistent with the the amount of self-duress in each individual case. teachings of medical science. Browne, in his Medi- But neither the Alabama nor the New Hampshire cal Jurisprudence, says that "insanity may manifest decision is in conflict with the power of control test, itself in one who has hitherto appeared sane, in and both actually indorse it. In those cases the one criminal act." The weakness of the position power of control test was given as a rule of law held by the Pennsylvania court is that it is too to guide the juries, and it was then stated that severe in its limitations upon the doctrine of irre- whether sufficient power of control actually existed sistible impulse. While recognizing that there may in the case in question, to justify a conviction, was be an insane impulse, it yet brands it as a dangerous to be determined by no arbitrary legal test, but doctrine. Pennsylvania so limits the doctrine of by the facts of the case. In New Hampshire it irresistible impulse that the Keystone State is, in was a question of fact for the jury; in Alabama it reality, very little in advance of the States which was to be determined by medical experts. Some refuse to admit that there is such a thing as an alienists, who are advocates of the merits of the 1 irresistible impulse. If the power of control test case test, would likely differ with the New Hampis to operate fairly and successfully, it must not be shire and Alabama courts as to the wisdom of giving hampered by the limitation which the Pennsylvania any legal rule of responsibility like the power of courts have imposed upon it. In practice, the control test for the guidance of juries. Their plan Pennsylvania doctrine has proved a failure, for would be to have each case decided solely and enunder it men, apparently insane, have been sent tirely on its merits without being hampered by any to the gallows. It is to be hoped that the Supreme arbitrary rule of law. Under an ideal system of Court of Pennsylvania will, in the course of time, jurisprudence perhaps such a scheme would be register itself squarely in favor of a power of con- feasible. It might be possible to do away with all trol test that is unfettered and unhampered. fixed rules of responsibility, if the responsibility of the defendant was to be determined by men who were familiar with the inherent nature of insanity, and who combined with their knowledge of mental diseases a just regard of the duty they owe to society at large, on the one hand, and the duty they owe to the prisoner, on the other. But we are not considering what would be desirable and feasible under the system of jurisprudence that might

The last test of responsibility that we will consider is what may be termed the merits of the case test. There is excellent authority to sustain the proposition that there can be no accurate test of responsibility which will hold for all cases, but that each case must be decided upon its merits. Bishop says: "The test of insanity has never been found, not because those who have searched for

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