acts.259 This test, however, though it has at times been recognized by the courts, 260 has long ago been abandoned as too vague and uncertain for practical application.261 Another test, announced by an English judge nearly two centuries ago, is called the "wild beast test." He charged a jury that a man, to be exempt from responsibility, "must 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." 262 This test is not now recognized in any jurisdiction. To render a man irresponsible on the ground of insanity, his reason need not be totally dethroned.2

263

95. Capacity to Distinguish between Right and Wrong.

In many jurisdictions, if not in most, the sole test of responsibility, when insanity is set up as a defense, is the capacity of the ac

259 1 Hale, P. C. 30.

260 See State v. Richards, 39 Conn. 591, Beale's Cas. 238; where this test was given to the jury on a prosecution of a weak-minded person for arson. 261 See the cases cited under § 95 et seq. 262 Mr. Justice Tracy's charge to the jury in 1724 in Arnold's Case, 16 How. St. Tr. 764.

263 See State v. Richards, 39 Conn. 591, Beale's Cas. 238, and cases hereafter cited.

cused to distinguish between right and wrong as to the particular act at the time it was committed. As we shall presently see, some courts go further. The leading case on insanity as a defense in criminal prosecutions arose in England in 1843, and is known as "McNaghten's Case." 264 One McNaghten killed the private secretary of Sir Robert Peel, the premier of England, mistaking him for the premier, and was acquitted of murder on the ground of insanity. This caused so much public excitement that the question of insanity as a defense came up on debate in the house of lords, and the lords addressed certain questions to the judges. In reply the judges said that, "to establish a defense cn 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."

This statement has since been accepted as

264 McNaghten's Case, 10 Clark & F. 200, 1 Car. & K. 130, Beale's Cas. 231.

the law in England,265 and in many of our states it has been adopted as the only test.266 In all states it is recognized as far as it goes; 267 but, as will be shown in a subsequent section, some courts go further than this, and hold that a person is not criminally responsible for an act if done solely by reason of an insane irresistible impulse, though he may have known that it was both morally and legally wrong.268

The knowledge of right and wrong test is capacity to distinguish between right and

265 See Reg. v. Haynes, 1 Fost. & F. 666, Beale's Cas. 234; Reg. v. Law, 2 Fost. & F. 836; Reg. v. Tounley, 3 Fost. & F. 839.

266 Flanagan v. People, 52 N. Y. 467, 11 Am. Rep. 731, Beale's Cas. 241; Cunningham v. State, 56 Miss. 269, 31 Am. Rep. 360; People v. Hoin, 62 Cal. 120, 45 Am. Rep. 651. And see post, § 97,

note 280.

267 Com. v. Rogers, 7 Metc. (Mass.) 500, 41 Am. Dec. 458, Beale's Cas. 235; Freeman v. People, 4 Denio (N. Y.) 9, 47 Am. Dec. 216; Brinkley v. State, 58 Ga. 296; Williams v. State, 50 Ark. 511; U. S. v. Lee, 4 Mackey (D. C.) 489, 54 Am. Rep. 293; Carter v. State, 12 Tex. 500, 62 Am. Dec. 539; Thomas v. State, 40 Tex. 60, 63; Hawe v. State, 11 Neb. 537, 38 Am. Rep. 375; State v. Bundy, 24 S. C. 439, 58 Am. Rep. 263; and cases hereafter cited.

268 Post, § 97 b.

wrong, not in the abstract, but as to the particular act. If such capacity existed, the accused is fully responsible, though in other respects he may have been insane.269

Mere Weakness of Mind, where there is sufficient capacity to know that the act is wrong, is no ground of exemption.270

269 McNaghten's Case, 10 Clark & F. 200, 1 Car. & K. 130, Beale's Cas. 231; Freeman v. People, 4 Denio (N. Y.) 9, 47 Am. Dec. 216; Bolling v. State, 54 Ark. 588; Guiteau's Case, 10 Fed. 161; Thomas v. State, 40 Tex. 60, 63; post, § 96b.

The capacity to plan a crime does not necessarily imply sanity. And it has been held wrong, therefore to instruct the jury that a person accused of homicide is responsible, if he had sufficient power of mind "to deliberate and premeditate a design to effect the death" of the deceased. Bennett v. State, 57 Wis. 69, 46 Am. Rep. 26.

It has been held that there is no grade of insanity sufficient to acquit of murder, but not of manslaughter. U. S. v. Lee, 4 Mackey (D. C.) 489, 54 Am. Rep. 293. But see Anderson v. State, 43 Conn. 514, 21 Am. Rep. 669.

270 Patterson v. People, 46 Barb. (N. Y.) 625; Wartena v. State, 105 Ind. 445; Conway v. State, 118 Ind. 482; Travers v. U. S., 6 App. D. C. 450; State v. Flowers, 58 Kan. 702.

"While a slight departure from a well-balanced mind may be pronounced insanity in medical science, yet such a rule cannot be recognized in the administration of the law when a person is

Ability to Comprehend Ingredients of Offense. But when a person is in fact of unsound mind, it is necessary, in order that he may be capable of committing a crime, that he shall have sufficient mind "to see all the essential ingredients of the offense, and acknowledge their existence." 271

96. Insane Delusion.

(a)In General.-A man may be insane as

on trial for the commission of a high crime. The just and necessary protection of society requires the recognition of a rule which demands a greater degree of insanity to exempt from punishment." Per Chief Justice Mercur in Taylor v. Com., 109 Pa. St. 262, 271.

It is proper to refuse to charge the jury that the mental condition of the accused, to render him responsible, "must have been such that he was capable of a careful weighing of reasons in order to a decision." State v. Swift, 57 Conn. 496.

Mere oddity or hypochondria is not insanity. Hawe v. State, 11 Neb. 537, 38 Am. Rep. 375.

271 People v. Cummins, 47 Mich. 334. For this reason, in the case cited, where temporary insanity was set up as a defense in the prosecution for larceny, it was held erroneous to charge that, if the accused knew enough to know that he was taking property that did not belong to him, he was sane enough to be guilty. He might have had mind enough to know this, it was said, and yet not enough to fraudulently intend to deprive the owner permanently of his property,