irresistible impulse to do an act exempts one from responsibility, when he has the capacity to distinguish between right and wrong, and does know, when he does the act, that it is wrong, is a question upon which the courts do not agree. The English courts, since the McNaghten Case, and many of the courts in this country, refuse to recognize this condition of the mind as a ground of exemption, but limit the test to the capacity to distinguish between right and wrong as to the particular Some of them, even in the face of medical testimony to the contrary, refuse to recognize the existence of such a mental condition as an insane irresistible impulse to do an act known to be wrong, but regard it as mere moral perversion. These courts hold that the only test of responsibility is the capacity to know that the act is wrong, and that a man who has such capacity is fully responsible, no matter what impulse may have driven him to do the act.280

act.

280 McNaghten's Case, 10 Clark & F. 200, 1 Car. & K. 130, 8 Scott, N. R. 595, Beale's Cas. 231, Mikell's Cas. 256; Reg. v. Haynes, 1 Fost. & F. 666, Beale's Cas. 234; Reg. v. Stokes, 3 Car. & K. 185; People v. Hoin, 62 Cal. 120, 45 Am. Rep. 651; People v. Hubert, 119 Cal. 216, 51 Pac. 329; People v. Owens, 123 Cal. 482, 56 Pac. 251; State v. Lawrence, 57 Me. 574; State v. Knight, 95 Me. 467, 50 Atl. 276, 55 L. R. A. 373; Spencer v. State, 69 Md. 28, 37, 13 Atl. 809; State v. Scott, 41 Minn. 365, 43 N. W. 62; Cunningham v. State, 56 Miss. 269, 31 Am. Rep. 360, Mikell's Cas. 306; State v. Pagels, 92 Mo. 300, 317, 4 S. W. 931; State v. Miller, 111 Mo. 542, 20 S. W. 243; State v. Soper, 148 Mo. 217, 49 S. W. 1007; State v. Mowry, 37 Kan. 369, 15 Pac. 282; Hawe v. State, 11 Neb. 537, 10 N. W. 452, 38 Am. Rep. 375; State v. Lewis, 20 Nev. 333, 22 Pac. 241 (collecting the cases pro and con); Genz v. State, 59 N. J. Law, 488, 37 Atl. 69; Mackin v. State, 59 N. J. Law, 495, 36 Atl. 1040; Flanagan v. People, 52 N. Y. 467, 11 Am. Rep. 731, Beale's Cas. 241; People v. Carpenter, 102 N. Y. 238, 6 N. E. 584, 38 Hun, 490; Freeman v. People, 4 Denio (N. Y.) 9, 47 Am. Dec. 216; State v. Alexander, 30 S. C. 74, 8 S. E. 440, 14 Am. St. Rep. 879; State v. Bundy, 24 S. C. 439, 58 Am. Rep. 263; State v. Levelle, 34 S. C. 120, 131, 13 S. E. 319; Wilcox v. State, 94 Tenn. 106, 28 S. W. 312; Cannon v. State, 41 Tex. Cr. R. 467, 56 S. W. 351; Davis v. State, 44 Fla. 32, 32 So. 822; State v. Harrison, 36 W. Va. 729, 15 S. E. 982, Mikell's Cas. 263; Leache v. State, 22 Tex. App. 279, 3 S. W. 539, 58 Am. Rep. 638; Carter

(b) Contrary and More Reasonable View.-This position cannot be sustained in reason, and is opposed to the plainest principles of law. On questions like this the courts must keep pace with the progress of thought and discovery in medical science. They cannot blindly and obstinately refuse to recognize a phase of insanity, and adhere to old tests of responsibility, merely because such a state of mind was unknown to medical science half a century ago. Experts in the science of medicine, who certainly are better qualified to speak on the subject than the judges, virtually agree that disease of the mind, as distinguished from mere moral perversion, may irresistibly impel a man to the commission of a deed, while it leaves him with sufficient capacity to know that the deed is both morally and legally wrong. Thus, they say that a man may be afflicted with kleptomania, or an insane irresistible impulse to steal, with pyromania, or an insane irresistible impulse to burn buildings, etc., or with homicidal mania, or an insane irresistible impulse to kill. If, as a fact, such a condition of the mind can and does exist, it must follow that a man who commits an act solely by reason of it is not responsible. No fault can be imputed to the victim of such a disease. The act, because of mental disease, is involuntary, and no principle of law is better settled than the principle that a man is not to be punished for his involuntary acts. And surely he should not be pun

v. State, 12 Tex. 500, 62 Am. Dec. 539; Williams v. State, 7 Tex. App. 163.

In New York, the Penal Code exempts a man on the ground of insanity only where "he was laboring under such a defect of reason as either (1) not to know the nature and quality of the act he was doing, or (2) not to know that the act was wrong." Pen. Code N. Y. 21. See People v. Taylor, 138 N. Y. 398, 34 N. E. 275.

The early cases in Texas (Looney v. State, 10 Tex. App. 520, 38 Am. Rep. 646; Harris v. State, 18 Tex. App. 287), holding the view that kleptomania, or an irresistible impulse to steal was a defense to a charge of theft, have been overruled. Hurst v. State, 40 Tex. Cr. R. 378, 46 S. W. 635, 50 S. W. 719; Cannon v. State, 41 Tex. Cr. R. 467, 56 S. W. 351; Lowe v. State, 44 Tex. Cr. R. 224, 70 S. W. 206.

ished for his mental disease. The only ground upon which the courts can refuse to recognize an exemption from responsibility in such cases is that such a state of mind cannot result from mental disease, and to take this position they must disregard the line between the respective provinces of the court and the jury. Medical experts say that such a state of mental disease does exist. Whether it did exist in any particular case, therefore, is a question of fact for the jury. There are well-considered cases in which this view of the question has been taken, and in which it has been held that a man is not responsible for an act done under and solely by reason of an insane and irresistible impulse, though he may have known that it

281 Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am. Rep. 193, Beale's Cas. 242; Williams v. State, 50 Ark. 511, 9 S. W. 5; Bolling v. State, 54 Ark. 588, 16 S. W. 658; Green v. State, 64 Ark. 523, 43 S. W. 973; State v. Johnson, 40 Conn. 136; Flanagan v. State, 103 Ga. 619, 30 S. E. 550; Dacey v. People, 116 Ill. 555, 6 N. E. 165; Stevens v. State, 31 Ind. 485, 99 Am. Dec. 634; Bradley v. State, 31 Ind. 492; Plake v. State, 121 Ind. 433, 23 N. E. 273, 16 Am. St. Rep. 408; State v. Felter, 25 Iowa, 67; Smith v. Com., 1 Duv. (Ky.) 224; Scott v. Com., 4 Metc. (Ky.) 227, 83 Am. Dec. 461; Shannahan v. Com., 8 Bush (Ky.) 463, 8 Am. Rep. 465; Com. v. Rogers, 7 Metc. (Mass.) 500, 41 Am. Dec. 458, Beale's Cas. 235; State v. Pike, 49 N. H. 399, 6 Am. Rep. 533; State v. Jones, 50 N. H. 369, 9 Am. Rep. 242, Mikell's Cas. 275; Blackburn v. State, 23 Ohio St. 146, 165; Com. v. Mosler, 4 Pa. 264, Mikell's Cas. 260; Coyle v. Com., 100 Pa. 573, 45 Am. Rep. 397; Taylor v. Com., 109 Pa. 262; Com. v. Wireback, 190 Pa. 138, 42 Atl. 542; State v. Windsor, 5 Harr. (Del.) 512; State v. Reidell, 9 Houst. (Del.) 470; Dejarnette v. Com., 75 Va. 867, 877; Butler v. State, 102 Wis. 364, 78 N. W. 590; State v. Keerl, 29 Mont. 508, 75 Pac. 362, 101 Am. St. Rep. 579.

In Com. v. Mosler, 4 Pa. 264, it was said by Chief Justice Gibson: "There may be an unseen ligament pressing on the mind, drawing it to consequences which it sees, but cannot avoid, and placing it under coercion, which, while its results are clearly perceived, is incapable of resistance. The doctrine which acknowledges this mania is dangerous in its relations, and can be recognized only in the clearest cases. It ought to be shown to have been habitual, or at least to have evinced itself in more than a single instance." This was approved in Coyle v. Com., 100 Pa. 573, 45 Am. Rep. 397.

Compare Scott v. Com., 4 Metc. (Ky.) 227, 83 Am. Dec. 461, where

In order that a person may be exempt on the ground of irresistible impulse, the impulse must be the result of disease of

it was held that the disease need not have manifested itself in former acts of like character.

Leading Case: In Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am. Rep. 193, Beale's Cas. 242, the leading authorities and cases on insanity as a defense were exhaustively reviewed, and it was held, on reasoning that is unanswerable, that, if there is such a state of mind as insane irresistible impulse, it must constitute an exemption from responsibility, and that the court has no right to say that it does not exist, but must leave that question to the jury. It was said: "We think that the inquiries to be submitted to the jury, in every criminal trial where the defense of insanity is interposed are these:

First: Was the defendant, at the time of the commission of the alleged crime, as a matter of fact, afflicted with a disease of the mind, so as to be either idiotic or otherwise insane?

Second: If such be the case, did he know right from wrong, as applied to the particular act in question? If he did not have such knowledge, he is not legally responsible.

Third: If he did have such knowledge, he may nevertheless not be legally responsible if the two following conditions concur: (1) If, by reason of the duress of such mental disease, he had so far lost the power to choose between the right and wrong, and to avoid doing the act in question, as that his free agency was at the time destroyed; (2) and if, at the same time, the alleged crime was so connected with such mental disease, in the relation of cause and effect, as to have been the product of it solely."

This doctrine was clearly recognized by Lord Denman in England before the McNaghten Case, referred to in a preceding section. In Reg. v. Oxford, 9 Car. & P. 525, he said, referring to the accused: "If some controlling disease was in truth the acting power within him, which he could not resist, then he will not be responsible."

It has been objected that it is difficult to apply this rule; but, as was said by Judge Sommerville in Parsons v. State, supra, the difficulty does not lie in the rule, but is inherent in the subject of insanity itself; and the same objection applies to the "right and wrong test," and will apply to any other test.

In Hopps v. People, 31 Ill. 385, 83 Am. Dec. 231, the supreme court of Illinois, after expressing doubt as to what the rule or tests should be in cases of alleged insanity laid down this rule: "Whenever it should appear from the evidence that, at the time of doing the act charged, the prisoner was not of sound mind, but affected with insanity, and such affection was the efficient cause of the act, and that he would not have done the act but for that affection, he ought to be

the mind;282 and it must be irresistible, or, in other words, · the disease must exist "to such an extent as to subjugate the intellect, and render it impossible for the person to do otherwise than yield thereto."283 The act must have been the product of the disease solely.284

98. Moral and Emotional Insanity, So Called.

Whenever irresistible impulse is relied upon as a defense, care must be taken to distinguish between insane irresistible impulse-that is, irresistible impulse resulting from disease of the mind-and mere moral perversion and passion. The expression "moral insanity" is often used, but, strictly speaking, it is not insanity at all. It is merely a perverted or abnormal condition of the moral system, where the mind is sound. It is well settled that there is no exemption from responsibility merely because of moral insanity, or because of ungovernable passion, sometimes called "emotional insanity."285 acquitted. But this unsoundness of mind, or affection of insanity, 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." And see Dacey v. People, 116 Ill. 555, 6 N. E. 165.

Kleptomania, or an irresistible impulse to steal, has been held a defense to a charge of larceny in the following cases: State v. McCullough, 114 Iowa, 532, 87 N. W. 503, 55 L. R. A. 378, 89 Am. St. Rep. 382; Com. v. Fritch, 9 Pa. Co. Ct. R. 164; People v. Sprague, 2 Park. Cr. R. (N. Y.) 43. As to Texas see ante, note 280.

282 Bolling v. State, 54 Ark. 588, 16 S. W. 658; Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am. Rep. 193, Beale's Cas. 242, and other cases cited in the note preceding; and post, § 98.

283 Taylor v. Com., 109 Pa. 262. And see Scott v. Com., 4 Metc. (Ky.) 227, 83 Am. Dec. 461; Com. v. Wireback, 190 Pa. 138, 42 Atl. 542.

284 Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am. Rep. 193, Beale's Cas. 242; Green v. State, 64 Ark. 523, 43 S. W. 973; State v. Hockett, 70 Iowa, 442, 30 N. W. 742; State v. Stickley, 41 Iowa, 232.

285 Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am. Rep. 193, Beale's Cas. 242; Boswell v. State, 63 Ala. 307, 35 Am. Rep. 20; Bolling v. State, 54 Ark. 588, 16 S. W. 658; Williams v. State, 50 Ark. 511, 9 S. W. 5; Smith v. State, 55 Ark. 259, 18 S. W. 237; People v. Kerrigan,