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§ 114. Time of insanity; periodical insanity. The mental condition of the defendant at the time of the commission of the offense is controlling. If he was sane then, his insanity at any previous time, 62 or the fact that he subsequently becomes insane, 63 will not excuse him. Nor does it make any difference at what particular time he may have become insane if he was insane when the offense was committed.64 On the other hand, temporary insanity is as much a defense as permanent insanity,65 and if the accused was actually insane within the legal definitions when he committed the act, he is not responsible however sane he may have been at all other times.66

determining the degree of the crime and whether the defendant should be capitally punished.

In Mangrum v. Com., 19 Ky. L. Rep. 94, 39 S. W. 703, an instruction giving the jury the right to consider the defendant's mental condition in fixing the degree of his guilt was held to be as favorable to him as he was entitled to.

In Belcher v. Com., 165 Ky. 649, 177 S. W. 455, Ann. Cas. 1917 B. 238, the refusal of an instruction in a homicide case that if the jury believed that the defendant was of a feeble mind they should find him guilty of voluntary manslaughter was held not to be prejudicial in view of an instruction authorizing an acquittal for mental incapacity.

62 United States. Guiteau's Case, 10 Fed. 161.

Florida. Cochran v. State, 65 Fla. 91, 61 So. 187.

Illinois. Meyer v. People, 156 Ill. 126, 40 N. E. 490.

Kentucky. Montgomery v. Com., 88 Ky. 509, 11 S. W. 475.

Missouri State v. Morris, 263 Mo. 339, 172 8. W. 603.

New Jersey. State v. Spencer, 21 N. J. L. 196.

North Carolina. State v. Cooper, 170 N. C. 719, 87 S. E. 50, 8 A. L. R. 1214.

Pennsylvania. Com. v. Winnemore, 1 Brewst. 356.

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Kentucky. See Babey v. Com., 169 Ky. 735, 185 S. W. 81; Montgomery v. Com., 88 Ky. 509, 11 S. W. 475. New York. Freeman v. People, 4 Denio 9, 47 Am. Dec. 216.

North Carolina. State v. Cooper, 170 N. C. 719, 87 S. E. 50, 8 A. L. R. 1214.

Texas. Shultz v. State, 13 Tex. 401. 64 State v. Porter, 213 Mo. 43, 111 S. W. 529, 127 Am. St. Rep. 589.

The law does not require that the insanity shall have existed for any definite period, but it is sufficient if it exists at the moment when the act occurs. United States v. Sickles, 2 Hayw. & H. 319, Fed. Cas. No. 16, 287a; State v. Johnson, 40 Conn. 136; State v. Cooper, 170 N. C. 719, 87 S. E. 50, 8 A. L. R. 1214.

65 People v. Ford, 138 Cal. 140, 70 Pac. 1075.

66 Duthey v. State, 131 Wis. 178, 111 N. W. 222, 10 L. R. A. (N. S.) 1032.

So a man who is periodically insane, that is, insane at times only, with lucid intervals, is criminally responsible for an act committed during a lucid interval, but not for acts committed while he is insane 67 But both at common law and by express provision of the statute in many states, a person cannot be tried or punished at a time when he is so insane as to be unable to appreciate the proceedings against him or to make a defense, even though he was sane when the offense was committed.68

§ 115. Definitions and distinctions. The word "insanity," in its broad sense, includes every species of mental aberration or sickness of the mind.69 A lunatic, or non compos mentis, is defined by Blackstone to be one who has possessed reason, but through disease, grief or other cause has lost it.70 The word was originally used to

67 Carty v. State, 135 Ark. 169, 204 S. W. 207; Quattlebaum v. State, 119 Ga. 433, 46 S. E. 677; Carter v. State, 2 Ga. App. 254, 58 S. E. 532; State v. Spencer, 21 N. J. L. 196; Montgomery v. State, 68 Tex. Cr. 78, 151 S. W. 813. 68 United States. Nobles v. State of Georgia, 168 U. S. 398, 42 L. Ed. 515, 18 Sup. Ct. 87.

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California. In re Buchanan, 129 Cal. 330, 61 Pac. 1120, 50 L. R. A. 378; People v. Kirby, 15 Cal. App. 264, 114 Pac. 794.

Illinois. People v. Geary, 298 Ill. 236, 131 N. E. 652.

Massachusetts. Com. v. Spencer, 212 Mass. 438, 99 N. E. 266, Ann. Cas. 1913 D 552.

New Mexico. In re Smith, 25 N. M. 48, 176 Pac. 819.

New York. People v. Nyhan, 171 N. Y. Supp. 466; Freeman v. People, 4 Denio 9, 47 Am. Dec. 216; People v. Lake, 2 Park Cr. 215.

North Carolina. State v. Harris, 53 N. C. 136, 78 Am. Dec. 272.

South Carolina. See State v. Bethune, 88 S. C. 401, 71 S. E. 29.

Texas. See Shultz v. State, 13 Tex. 401.

West Virginia. Gruber v. State, 3 W. Va. 699.

England. Rex v. Governor of Stafford Prison [1909], 2 K. B. 81; Rex v. Dyson, 7 C. & P. 305; Rex v. Pritchard, 7 C. & P. 303.

And see the statutes of the various states.

69 Richey v. Com., 6 Ky. L. Rep. (abst.) 515; Schissler v. State, 122 Wis. 365, 99 N. W. 593; State v. Wilner, 40 Wis. 304.

Webster defines the word insane as "'exhibiting unsoundness of mind; mad; deranged in mind; delirious; distracted." Hawe v. State, 11 Neb. 537, 10 N. W. 452, 38 Am. Rep. 375.

As used in the Oklahoma statute it is general and comprehends all unsound, diseased, and deranged conditions of the mind or intellect. Adair v. State, 6 Okla. Cr. 284, 118 Pac. 416, 44 L. R. A. (N. S.) 119.

Under the Indiana statute the term insanity "includes every species of organic mental derangement, whether of a mild or violent form, and excludes every other condition of the mind." Sage v. State, 91 Ind. 141.

70 1 Bl. Com. 304; In re Anderson, 132 N. C. 243, 43 S. E. 649. "Lunacy is that condition or habit

denote a person suffering from periodic insanity, who has lucid in tervals and may yet in contemplation of law recover his reason."1 Generally this distinction is no longer observed, and the terms lunacy and lunatic are regarded as synonymous with insanity and insane. person.72 Delirium has been defined as that state of the mind in which it acts without being directed by the power of volition which is wholly or partially suspended.78 Paranoia is a term used by medical experts, alienists and authors on medical jurisprudence to designate that form of insanity characterized by systematized delusions concerning a single subject or a limited number of subjects. It embraces and is another name for what is commonly known as monomania or partial insanity.74 Some other forms of insanity and mental derangement are defined and considered in subsequent sections.75

§ 116. Tests of responsibility-In general. In order that a person may be excused from criminal responsibility on the ground of insanity in any case he must have been laboring under a defect of reason, or, in other words, must have been suffering from some disease of the

in which the mind is directed by the will, but is wholly or partially misguided, or erroneously governed by it, or it is the impairment of any one or more of the faculties of the mind, accompanied with, or inducing a defect in the comparing faculty." Owings' Case, 1 Bland (Md.) 370, 17 Am. Dec. 311.

711 Bl. Com. 304; Smith v. Hickenbottom, 57 Iowa 733, 11 N. W. 664; Bicknell v. Spear, 38 N. Y. Misc. 389, 77 N. Y. Supp. 920; In re Anderson, 132 N. C. 243, 43 S. E. 649.

72 Smith v. Hickenbottom, 57 Iowa 733, 11 N. W. 664.

Lunatic has been broadened by statute to include all insane persons except idiots. Bicknell v. Spear, 38 N. Y. Misc. 389, 77 N. Y. Supp. 920.

Insanity and lunacy are often used synonymously. State v. Keerl, 29 Mont. 508, 75 Pac. 362, 101 Am. St. Rep. 579.

78This happens most perfectly in dreams. But what is commonly called

delirium, is always preceded or attended by a feverish and highly diseased state of the body." Owings' Case, 1 Bland (Md.) 370, 17 Am. Dec.

311.

As to delirium tremens, see § 130, infra.

74 Clevenger Med. Jur. of Insanity, 860 et seq.; 1 Wharton & Stille Med. Jur., § 1020 et seq.; Hankins v. State, 133 Ark. 38, 201 S. W. 832, L. R. A. 1918 D 784; Bell v. State, 120 Ark. 530, 180 S. W. 186; Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; People v. Lowhone, 292 Ill. 32, 126 N. E. 620; s. c., 296 Ill. 391, 129 N. E. 781.

It is what was formerly known as delusional insanity. Jackson v. Jackson, 77 L. J. Prob. N. S. 147, 24 Times L. R. 674, 52 Sol. J. 535, 3 Brit. Rul. Cas. 452.

Insane delusions as a defense, see § 119, infra.

75 See §§ 119-122, infra.

mind.76 A belief that his act is not wrong will not excuse him unless it is the outcome of mental derangement, nor will mere frenzy, excitement, or ungovernable passion resulting from motives of anger, hatred, revenge, or the like.78 Nor is the barbarity of a person's conduct in itself evidence of irresponsible insanity. Not even every form of mental derangement or disorder is sufficient to relieve a person from responsibility,80 but the question depends upon the capacity to conceive and entertain the intent to commit the particular crime.81 So the mere fact that a person is of weak mind or is an imbecile will not necessarily excuse him.82 But it is not necessary that his reason be entirely dethroned.83

Various tests have been laid down from time to time by judges and commentators for determining when a man is to be deemed so insane as to be irresponsible. Sir Matthew Hale said, in effect, that though a man may be laboring under mental defect or disease, yet, if he has as great understanding as a child of fourteen years, he is responsible for his acts,84 and another test announced in an early English case was that a man, to be exempt from responsibility, "must

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79 United States v. Lee, 4 Mackey (15 D. C.) 489, 54 Am. Rep. 293; State v. Coyle, 86 S. C. 81, 67 S. E. 24, 138 Am. St. Rep. 1022.

The commission of an unnatural or atrocious crime is not necessarily evidence of insanity. People v. Lowhone, 296 Ill. 391, 129 N. E. 781; People v. Spencer, 264 Ill. 124, 106 N. E. 219.

80 State v. Keerl, 29 Mont. 508, 75 Pac. 362, 101 Am. St. Rep. 579.

81 State v. Keerl, 29 Mont. 508, 75

Pac. 362, 101 Am. St. Rep. 579; State v. Peel, 23 Mont. 358, 59 Pac. 169, 75 Am. St. Rep. 529; State v. Jones, 50 N. H. 369, 9 Am. Rep. 242; Thomas V. State, 40 Tex. 60; Williams v. State, 7 Tex. App. 163.

82 See § 123, infra.

83 State v. Richards, 39 Conn. 591; State v. Brown, 36 Utah 46, 102 Pac. 641, 24 L. R. A. (N. S.) 545.

84 1 Hale P. C. 30.

In State v. Richards, 39 Conn. 591, this test was given to the jury on a prosecution of a weak-minded person for arson.

In State v. Saxon, 87 Conn. 5, 86 Atl. 590, it is said that if the test is a proper one in any case, it is in one like State v. Richards, supra, where it was claimed that the accused was demented, and the jury were told that the comparison between the mentality of the accused and that of a child should be limited to their respective appreciation of right and wrong and of consequences and effects.

be a man that is totally deprived of his reason and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast." 85 But these tests have long ago been abandoned as too vague and uncertain for practical application.

The test most commonly applied at the present time is the capacity to distinguish between right and wrong, and in many states this is the sole test.86 But some of the courts hold that a person is not criminally responsible for an act done solely by reason of an insane irresistible impulse, though he may have known that it was wrong.87 In New Hampshire it is held that there is no legal rule or test for determining responsibility, but that whether the defendant was afflicted with a mental disease, and whether the crime was the result of that disease, are always questions of fact for the jury.88

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§ 117. Capacity to distinguish between right and wrong-In general. In the leading English case, on insanity as a defense in criminal prosecutions, known as McNaghten's case, the judges, in response to questions addressed to them by the house of lords said that, "to establish a defense on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature or quality of the act he was doing, or, if he did know it, that he did not know he was doing what was

wrong.

89

This statement, which is commonly known as the right and wrong test, has since been accepted as the law in England.90 In this country it has been recognized and adopted as a test of responsibility in all of the states as far as it goes; 91 and in many of them it has been adopted

85 Rex v. Arnold, 16 How. St. Tr. 764.

86 See § 117, infra.

87 See § 120, infra.

88 State v. Jones, 50 N. H. 369, 9 Am. Rep. 242; State v. Pike, 49 N. H. 399, 6 Am. Rep. 533.

89 McNaghten's Case, 10 Clark & F. 200, 1 Car. & K. 130, 8 Scott N. R. 595. 90 Reg. v. Higginson, 1 Car. & K. 129; Keg. v. Tounley, 3 Fost. & F. 839; Reg. v. Law, 2 Fost. & F. 836; Reg. v. Haynes, 1 Fost. & F. 666.

91 United States. Davis v. United States, 160 U. S. 469, 40 L. Ed. 499, 16 Sup. Ct. 353.

Arkansas. Carty v. State, 135 Ark. 169, 204 S. W. 207; Hankins v. State, 133 Ark. 38, 201 S. W. 832, L. R. A. 1918 D 784; Diggs v. State, 126 Ark. 455, 190 S. W. 448; Bell v. State, 120 Ark. 530, 180 S. W. 186; Williams v. State, 50 Ark. 511, 9 S. W. 5.

Colorado. Ryan v. People, 60 Colo. 425, 153 Pac. 756, L. R. A. 1917 F 646, Ann. Cas. 1917 C 605.

Connecticut. State v. Saxon, 87 Conn. 5, 86 Atl. 590.

Delaware. State v. Reidell, 9 Houst. 470, 14 Atl. 550; State v. Jack, 4 Pennew. 470, 58 Atl. 833.

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