ter and condition for many years before the act, was properly received."

The London Lancet of December 12, 1881, a periodical well known to the medical profession of both England and America commenting upon insanity as a defensive plea refuses to admit the theory of moral insanity and denies it the least professional countenance. The writer says: "We fancied the 'plea of insanity' had been reduced to absurdity in the ridiculous attempt made to show that Lefroy was insane; but it seems that the apotheosis of stupidity is to take place in America. It is high time the nonsense recently talked and written about 'irresponsibility' should be exposed and ended. If the supreme triumph of medical psychology is to be sought in the attempt to prove that men are mere machines, and that the wrong they do is not their doing, but the outcome of disease, the sooner this branch of science is discountenanced by the common sense of the profession the better will it be for the credit and influence of our cloth. If a man is not acting under a recognizable and formulated delirium when he commits a crime, he is clearly responsible, and ought to be so held unless he is unquestionably, and on grounds other than those arising out of or associated with his crime, shown to be insane. The mistake into which 'experts' and those who follow their lead commonly fall is to confound the evidences of a neurotic constitution with the symptoms of mental disease. The inheritor of an organism which predisposes to insanity is not necessarily insane. Lefroy was not insane, and Guiteau is not insane. The only insanity accruing to the latter case is that which those who support the plea may themselves import into it. The position of matters in regard to this question is becoming one of exceeding gravity, and it will soon need to be very seriously discussed."

h. Theory of Irresistible Impulse Examined. "Irresistible impulse," to constitute a defense, must be that of a person otherwise insane, we proceed to consider the authorities that establish such impulse, under such conditions, as a defense. In doing so it must be, at the outset, conceded that, by the English courts, this defense, as here stated, is rejected. No person, however insane, can, by the law as now (1882) expounded by these courts, be acquitted of a crime if it appear to the satisfaction of the jury that he knew the nature and quality of the act he was doing, or, if he did not know it, if he knew that the act was

wrong. But if, as may readily be shown, it is demonstrable that there sometimes is, among insane persons, an "irresistible impulse" to an act co-existing with a knowledge that it was wrong then comes the question whether lunatics of this stamp are legally punishable for such acts. That they are not, the tendency of American authority is to maintain. And even in England we find Mr. Stephen, in his work on English Criminal Law (London, 1863) p. 91,—a work as remarkable for philosophical symmetry as for legal accuracy,-stating (1863) the questions to be, "in popular language, Was it his act? Could he help it? Did he know it was wrong?" He goes on further to say: "It would be absurd to deny the possibility that such (irresistible) impulses may occur, or the fact that they have occurred, and have been acted on. Instances are also given in which the impulse was felt, and was resisted. The only question which the existence of such impulses can raise in the administration of criminal justice, is whether the particular impulse in question was irresistible as well as unresisted. If it were irresistible the person accused is entitled to be acquitted, because the act was not voluntary, and was not, properly, his act. If the impulse was irresistible, the fact that it proceeded from disease is no excuse at all." See People v. MeFarland, 8 Abb. Pr. N. S. 57. In Sir J. Stephen's testimony before the English homicide committee the same view is taken. Whart. Am. Crim. L. (8th ed.) § 45.

i. Review of the State Decisions.-In Illinois, in 1863, it was declared by the supreme court that a safe and reasonable test would be, that 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 should be 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. If it be shown the act was the consequence of an insane delusion, and caused by it, and by nothing else, justice and humanity alike demand an acquittal. Sound mind is presumed if the accused is neither an idiot, a lunatic, nor "affected with insanity." If he be

insane, sound mind is wanting, and the crime is not established; therefore, the burden is on the state to establish sanity, and not upon the prisoner to show insanity. See Fisher v. People, 23 Ill. 283; Hopps v. People, 31 Ill. 394, 83 Am. Dec. 231. So, also, Judge Brewster, speaking for the judges of the Philadelphia common pleas, said, in 1868: "The true test in all these cases lies in the word 'power.' Has the defendant in a criminal case the power to distinguish right and wrong, and the power to adhere to the right and avoid the wrong?" Com. v. Haskell, 2 Brewst. 491.

In Indiana a similar view was accepted in 1869. Stevens v. State, 31 Ind. 485, 99 Am. Dec. 634.

In Ohio insane irresistible impulse is regarded as a defense (Blackburn v. State, 23 Ohio St. 146) and such is the view in Minnesota and Kentucky. Smith v. Com. 1 Duv. 224. In Iowa, in 1868, the same point was affirmed by the supreme court, Chief Justice Dillon delivering the opinion. The capacity to distinguish right and wrong, it was held, is not in all cases a safe test of criminal responsibility. If a person commit a homicide, knowing it to be wrong, but driven to it by an uncontrollable and irresistible impulse, arising not from natural passion, but from an insane condition of the mind, he is not criminally responsible. State v. Felter, 25 Iowa, 67. See also People v. McFarland, 8 Abb. Pr. N. S. 57. To the same effect is a decision of the Supreme Court of the United States in 1872. Mutual L. Ins. Co. v. Terry, 82 U. S. 15 Wall. 580, 21 L. ed. 236. See also Blackburn v. State, 23 Ohio St. 165; Brown v. Com. 78 Pa. 122; and other cases in Whart. Am. Crim. L. (8th ed.) 145.

Thus, in People v. Coleman, 1 N. Y. Crim. Rep. 3, Judge Davis charged the jury as follows: "In this state the test of responsibility for criminal acts, where insanity is asserted, is the capacity of the accused to distinguish between right and wrong at the time and with respect to the act which is the subject of inquiry." He further said that the question for the jury to determine is "whether at the time of doing the act the prisoner knew what she was doing and that she was doing a wrong; or, in other words, did she know that she was shooting at the deceased, and that such shooting was a wrongful act?" The judge further said: "No imaginary inspiration to do a personal or private wrong, under a delusion, a belief, that some great public benefit

will flow from it, where the nature of the act done and its probable consequences, and that it is in itself wrong, are known to the actor, can amount to that insanity which in law disarms the act of criminality. Under such notions of legal insanity, life, property and rights, both public and private, would be altogether insecure, and every man who, by brooding over his wrongs, real or imaginary, shall work himself up to an irresistible impulse to avenge himself, or his friend or his party, can with impunity become a a self-elected judge, jury, and executioner in his own case, for the redress of his own injuries or the imaginary wrongs of his friends, his party, or his country. But, happily, that is not the law, and whenever such ideas of insanity are applied to a given case as the law (as too often they have been) crime escapes punishment, not through the legal insanity of the accused, but through the emotional insanity of courts and juries."

To the same general effect may be cited Reg. v. Oxford, 9 Car. & P. 525; Rex v. Burrow, 1 Lew. C. C. 238; Reg. v. Goode, 7 Ad. & El. 536, 67 Hans. Parl. Deb. 728; Bowler's Case, 67 Hans. Parl. Deb. 480; Rex v. Hadfield, 67 Hans. Parl. Deb. 480, 27 How. St. Tr. 1282; Reg. v. Barton, 3 Cox, C. C. 275; Reg. v. Offord, 5 Car. & P. 168; Reg. v. Higginson, 1 Car. & K. 129; Reg. v. Stokes, 3 Car. & K. 185; Reg. v. Layton, 4 Cox, C. C. 149; Reg. v. Vaughan, 1 Cox, C. C. 80; United States v. Shults, 6 McLean, 121; Com. v. Rogers, 7 Met. 500, 41 Am. Dec. 458; State v. Richard, 39 Conn. 591; Freeman v. People, 4 Denio, 9, 47 Am. Dec. 216; Flanagan v. People, 52 N. Y. 467, 11 Am. Rep. 731; People v. Sprague, 2 Park. Crim. Rep. 43; State v. Spencer, 21 N. J. L. 196; Com. v. Mosler, 4 Pa. 264; Com. v. Farkin, 2 Pars. Sel. Eq. Cas. 439; Brown v. Com. 78 Pa. 122; State v. Gardiner, Wright, (Ohio) 392; Vance v. Com. 2 Va. Cas. 132; McAllister v. State, 17 Ala. 434, 52 Am. Dec. 180; Dove v. State, 3 Heisk. 348; Stuart v. People, 1 Baxt. 178. Commenting upon the Guiteau Case, 10 Fed. Rep. 194, Mr. Justice Somerville of the Alabama supreme court says:

j. Comments of Judge Somerville.-"The Guiteau case was tried before the United States district court for the District of Columbia, before Mr. Justice Cox, whose charge to the jury is replete with interest and learning. While he adopted the right and wrong test of insanity, he yet recognized the principle that if the accused in fact entertained an insane delusion, which was

the product of the disease of insanity, and not of a malicious heart and vicious nature, and acted solely under the influence of such delusion, he could not be charged with entertaining a criminal intent. An insane delusion was defined to be "an unreasonable and incorrigible belief in the existence of facts which are either impossible absolutely, or impossible under the circumstances of the individual;" and no doubt the case was largely determined by the application of this definition by the jury. It must ever be a mere matter of speculation what influence may have been exerted upon them by the high personal and political significance of the deceased, as the chief magistrate of the government or other peculiar surroundings of a partisan nature. The case in its facts is so peculiar as scarcely to serve the purpose of a useful precedent in the future." Parsons v. State, 81 Ala. 577, 60 Am. Rep. 193.

§ 412. Views of Mr. Robert Desty.-"The true test of responsibility lies in the word 'power'-has the defendant the power to distinguish right from wrong, and the power to adhere to the right and avoid the wrong, and the power to govern the mind, body, and estate? And it is sufficient if power to do so is shown to have existed in reference to the particular act. If he was under such defect of reason from disease of mind as not to know the quality of the act he was doing, or was under such delusion as not to understand the nature of his act, or had not sufficient memory or reason to know he was doing wrong, then he was not responsible; but if he knew what he was doing, and that the act was forbidden by law, and took precautions to accomplish his purpose, and had power of mind enough to know what he was doing at the time, then he is responsible; for it is conscious knowledge coupled with the act which constitutes crime." See Desty, Am. Crim. L. p. 62, § 236, and cases cited; Guiteau's Case, 10 Fed. Rep. 161.

§ 413. Views of the Florida Supreme Court.-The relations sustained by the supreme court of Florida to this interesting topic, are best evidenced by the decision in the case of Hodge v. State, 26 Fla. 11, which was decided in June, 1890, with the concurrence of the full bench. Upon a careful analysis, it appears that where the defense of insanity is relied upon as an extenuation or excuse for crime, and evidence is introduced which tends to overthrow the presumption of sanity, if upon the whole evi