M'NAGHTEN RULE V. IRRESISTIBLE IMPULSE TEST By CHARLES L. CErrI*

INTRODUCTION The proper test for legal insanity is a subject that has been in al- most constant dispute since the celebrated M'Naghten case in 1843.1 This article will attempt to deal with the controversy between two of the various tests that have been proposed as a basis for de- termining legal insanity: the M'Naghten Rule and the irresistible impulse test. In one of the most recent cases involving this dispute the de- fendant was tried for first degree murder and plead not guilty on grounds of insanity. Expert medical testimony indicated that al- though the defendant may have known the difference between right and wrong at the time of the murder, his power to control his conduct had been destroyed by mental disease. On appeal from a conviction of first degree murder, held, affirmed. If defendant knew the difference between right and wrong at the time of the 2 criminal act, he was not legally insane.

HISTORY OF TESTS FOR INSANITY* The M'Naghten Rule, or so-called "right and wrong" test for legal insanity, provides a against prosecution for criminal conduct if [a]t the time of the committing of the act, the party ac- cused was labouring under such a defect of reason; from disease of the mind, as not to know the nature and quality of the act was doing; or, if he did know it, that he did not know he was doing what was wrong.3 This has become the accepted test of insanity in a majority of juris- dictions in the United States.4 Federally, the circuit of appeals are divided on the M'Naghten Rule as a proper test for legal in- sanity.5 The United States Supreme has not committed itself 6 on the subject.

*First year student at Walter F. George School of , Mercer University. 1. M'Naghten's Case, 10 Clark & F. 200, 8 Eng. Rep. 718 (1843). 2. State v. White, - Wash. _ 374 P.2d 942 (1962). 3. M'Naghten's Case, 10 Clark & F. 200, 210, 8 Eng. Rep. 718, 722, as cited in PERKINS, AND PROCEDURE 535 (1959). 4. WEIHOFEN, INSANITY As A DEFENSE IN CRIMINAL LAW 44 (1933). 5. Retaining M'Naghten Rule as sole test for insanity: Howard v. U. S., 229 F.2d 602 (5th Cir. 1956) ; Andersen v. U. S., 237 F.2d 118 (9th Cir. 1956) ; Sauer v. U. S., 241 F.2d 640 (9th Cir. 1957). Using irresistible impulse test in con- junction with M'Naghten: note 21, infra. 6. Leland v. Oregon, 343 U. S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952). 1963] COMMENTS

Sometimes used in conjunction with the M'Naghten Rule is the test frequently labeled the "irresistible impulse" test. It supplements the M'Naghten Rule in the states of Alabama,7 Ar- kansas,8 Colorado, 9 Connecticut, 10 Delaware," Indiana,'2 Illinois,'3 Kentucky,' 4 Massachusetts, 15 Michigan,'8 Utah,'7 Vermont,'8 Vir- ginia,1 9 and Wyoming20 ; and federally in the third, seventh, and eighth 1 circuit courts of appeals. 2 Irresistible impulse is defined as follows:

Irresistible impulse as recognized by the courts is an impulse induced by, and growing out of, some mental disease affect- ing the volitive, as distinguished from the perceptive powers, so that the person afflicted, while able to understand the nature and consequences of the act charged against him and to perceive that it is wrong, is unable, because of such men- tal disease, to resist the impulse to do it. It is to be distin- guished from mere passion or overwhelming emotion not growing out of, and connected with, a disease of the mind. Frenzy arising solely from the passion of anger and jealousy, regardless of how furious, is not insanity.22

Recently, a modification of the irresistible impulse test has been adopted by the American Law Institute,2 3 but it has been accepted in only two states, Vermont and Illinois. 24 In addition to the above two tests, there exists a third test, referred

7. Boyle v. State, 229 Ala. 21, 154 So. 575 (1934). 8. Green v. State, 64 Ark. 523, 43 S.W. 973 (1898) ; Korsak v. State, 212 Ark. 921, 154 S.W.2d 348 (1941). 9. Ryan v. People, 60 Colo. 425, 153 P. 756 (1915). 10. State v. Johnson, 40 Conn. 136 (1873). 11. State v. Windsor, 5 Harr. 512 (Del. 1856). 12. Morgan v. State, 190 Ind. 411, 130 N.E. 528 (1921). 13. People v. Varecha, 353 Ill. 52, 186 N.E. 607 (1933); People v. Nierstheimer, 401 Ill. 260, 81 N.E.2d 900 (1948). 14. Murrell v. Commonwealth, 291 Ky. 65, 163 S.W.2d 1 (1942). 15. Commonwealth v. McCann, 325 Mass. 510, 91 N.E.2d 214 (1950). 16. People v. Finley, 38 Mich. 482 (1878). In People v. Durfee, 62 Mich. 487, 29 N.W. 109 (1886), the Supreme Court of Michigan approved a charge to the jury which included the irresistible impulse test. 17. State v. Green, 78 Utah 580, 6 P.2d 177 (1931). 18. Doherty v. State, 73 Vt. 380, 5 Atl. 1113 (1901). 19. Dejarnette v. Corn., 75 Va. 867 (1881); Thurman v. Com., 107 Va. 912, 60 S.E. 99 (1908). 20. Flanders v. State, 24 Wyo. 81, 156 P. 39 (1916). 21. U.S. v. Cain, 290 F.2d 934 (7th Cir. 1961); U.S. v. Currens, 290 F.2d 751 (3rd Cir. 1961); Dusky v. U.S., 295 F.2d 743 (8th Cir. 1961), cert. denied, 368 U.S. 998, 82 S.Ct. 625, 7 L.Ed.2d 536 (1962). 22. 14 Am. JUR. Criminal Law §35, p. 793 (1938). 23. MODEL PENAL CODE §4 (Tent. Draft No. 5, 1956) §4.01. 24. Allen, The Rule of the American Law Institute's Model Penal Code, 45 MARQ. L. REv. 499 (1962). MERCER LAW REVIEW [Vol. 14 to as the Durham Rule. 25 It is used in New Hampshire, 26 Washington, D. C.,27 and has been adopted by statute in Maine. 28 However, it has been rejected in every other court in which it has been considered.29 As this article deals mainly with the controversy surrounding the ir- resistible impulse test, it will not include a discussion of the Durham Rule.

OBJECTIONS TO THE IRRESISTIBLE IMPULSE TEST

There seem to be three primary objections to the inclusion of the irresistible impulse test into tests for legal insanity. The remainder of this article will attempt to deal with these objections.

IRRESISTIBLE IMPULSES DUE TO MENTAL DISEASE DO NOT EXIST

Many courts rejecting the irresistible impulse test argue that such impulses do not exist. The logic seems to be that if a person knows the nature of his act, and that it is wrong, he cannot be acting on an irresistible impulse. An early statement of this position appears in an opinion written by Brannon, J.: For myself I cannot see how a person who rationally com- prehends the nature and quality of an act, and knows that it is wrong and criminal, can act through irresistible inno- cent impu.lse.3 0 There are two factors which these courts seem to ignore, however. First, there are serious questions concerning the qualifications of legal authorities to express opinions on a subject with which only the most highly-educated medical men are equipped to deal. 31 Second, the great weight of expert medical opinion not only fails to support this position, but directly contradicts it.

25. " . . . an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect." Durham v. U.S., 214 F.2d 862, 874 (D.C. Cir. 1954). 26. State v. Pike, 49 N.H. 399, 6 Am. Rep. 533 (1870); State v. Jones, 50 N.H. 369, 9 Am. Rep. 242 (1871). 27. Note 25, supra. 28. MAINE REV. STAT., ch. 49 §38-A (Supp. IV) (1961). 29. Blocker v. U.S., 288 F.2d 853, 866, n. 22 (D.C. Cir. 1961). 30. State v. Harrison, 36 W.Va. 729, 751, 15 S.E. 982, 990 (1892). Quoted with approval by Skeel, J., in State v. Cumberworth, 69 Ohio App. 239, 247, 43 N.E.2d 510, 513 (1942), and by Jeffers, J., in State v. Maish, 29 Wash.2d 52, 60, 185 P.2d 486, 490 (1947). 31. "When a judge states that a person who kncws right from wrong can not be irresistibly impelled to do wrong, he is departing from his judicial function and is .assuming the role of an expert medical witness, for which he is in no way qualified." Keedy, Irresistible Impulse As A Defense in the Criminal Law, 100 U. PA. L. REv. 956, 988 (1952). COMMENTS

Edwin R. Keedy,32 in an article entitled, Irresistible Impulse As A Defense in the Criminal Law,33 lists twenty-two works on the subject, supporting the view that irresistible impulses resulting from mental 3 4 disease do exist.

Dr. Philip Q. Roche of Philadelphia, chairman of the Com- mittee on Forensic Psychiatry of the Group for the Advance- ment of Psychiatry, recently put to the members of this group the following question: "Are there cases where a person, suf- fering from mental derangement, knows that it is wrong to inflict bodily harm (killing, maiming, ravishing) upon an- other person, but owing to the mental derangement is in- capable of controlling (resisting) the impulse to commit such bodily harm?" One hundred and two answers were re- ceived, of which ninety-three were "yes" and nine were "no". 35

In a recent article, John R. Cavanah, M.D. (Doctor of Medicine, Washington, D. C.), recognized the existence of irresistible impulses caused by mental disease and advocated the retention of the irresistible impulse test in determining legal insanity. 36 The findings of Hervey Cleckley, M.D., in his leading work on psychopathy, THE MASK OF INSANITY (Mosby, 1941), have been sum- marized in Professor Robert W. White's, THE ABNORMAL PERSONALITY

32. A.B., 1899, Franklin and Marshall College; LL.B., 1906, Harvard University; LL.D., 1926, Franklin and Marshall College, 1950, University of Pennsylvania; Professor of Law Emeritus, University of Pennsylvania; Dean, University of Pennsylvania Law School, 1940-1945. 33. 100 U. PA. L. REV. 956, 989, n. 201 (1952). 34. KIRCHOFF, HANDBOOK OF INSANITY 93 (1893) ; CLEVENGER, MEDICAL JURISPRUDENCE OF INSANITY 172 (1898); LEWIS, A TEST-BOOK OF MENTAL DISEASE 207 (1899); MENTAL DISEASE 120 (1900); BROWER-BANNISTER, PRACTICAL MANUAL OF INSANITY 396 (1902); DEFENDORF, CLINICAL PSYCHIATRY 389 (1902); CRAIG, PSYCHOLOGICAL MEDICINE 71 (2nd ed. 1912); CLOUSTON, MENTAL DISEASES 338 (6th ed. 1904); BRUCE, STUDIES IN CLINICAL PSYCHIATRY 27 (1906); BIANCHI, TEXTBOOK OF PSY- CHIATRY 633 (1906); JACOBY, THE UNSOUND MIND AND THE LAW 13 (1918); GOODWIN, THE LUNATIC AND THE LAW 225 (1924); SINGER AND KROHN, IN- SANITY AND LAW 161, 212 (1924); STODDART, MIND AND ITS DISORDERS 257 (5th ed. 1926); EAST, FORENSIC PSYCHIATRY 358 (1927); Overholster, The Role of Psychiatry in the Administration of Criminal Justice, 93 J. AM. MED. ASS'N. 830 (1929); WHITE, OUTLINES OF PSYCHIATRY 98 (12th ed. 1929); SADLER, THEORY AND PRACTICE OF PSYCHIATRY 172 (1936); TRE-cOLD, MENTAL DE- FICIENCY 346 (6th ed. 1937); NovES, MODERN CLINICAL PSYCHIATRY 88 (3rd ed. 1948). See, also, 3 WirrHAUS AND BECKER, MEDICAL JURISPRUDENCE 247 (2nd ed. 1909). 35. Keedy, Irresistible Impulse As A Defense in the Criminal Law, 100 U. PA. L. REV. 956, 989 (1952). 36. Cavanah, Problems of A Psychiatrist in Operating Under the M'Naghten, Durham, and Model Penal Code Rules, 45 MARQ. L. REV. 478, 493 (Spring, 1962). MERCER LA W REVIEW[ [Vol. 14

(Ronald Press, 1958). They lend substantial support to the proposi- 3 7 tion that irresistible impulses do exist. Finally, there is an abundance of cases in which psychiatrists and psychologists have testified in courts of law that such impulses exist, and in some of the cases that the defendant acted on such an im- 8 pulse.3

REFUSAL TO ALLOW THE DEFENSE OF IRRESISTIBLE IMPULSE PROVIDES

A DETERRENT TO

Courts frequently advance the proposition that by refusing to allow a defense for those acting through irresistible impulse the crime rate 39 is kept lower than it would be if such a defense were allowed. However, there are no statistics'to prove that the ratio of crime in a state applying the irresistible impulse test is significantly greater than that of a comparable state not using such a test.40 The charge that the irresistible impulse test, " . . . constitutes a threat to the security 41 of society does not stand up under the light of experience." In fact, there is an abundance of which indicates that there is no discernable causal relationship between the crime rate and the test used for insanity. For example, a comparison of the crime rates in selected irresistible impulse states with those of comparable states using only the M'Naghten Rule, during the years 1958-1961, revealed that the average crime rate during the period was lower in four of the states using the irresistible impulse test than it was in their sister states using the M'Naghten Rule alone, while the con- verse was true in one of the comparisons 42;

37. "It is clear that we are dealing with a fairly serious disorder. There are grave disturbances in the patient's affective life as well as in foresight and the control and organization of behavior." (emphasis supplied). WHITE, THE ABNORMAL PERSON 404 (Ronald Press, 1948). 38. Smith v. U.S., 36 F.2d 548 (D.C. Cir. 1929); Hall v. State, 248 Ala. 33, 26 So.2d 566 (1946); Commonwealth v. McCann, 325 Mass. 510, 91 N.E.2d 214 (1950) ; People v. De Pompeis, 410 Ill. 587, 102 N.E.2d 813 (1951); Thompson v. Com., 193 Va. 704, 70 S.E.2d 284 (1952) ; State v. Blair, 99 A.2d 677 (1953); Berryman v. State, 283 P.2d 558, app. dismissed, 350 U.S. 878, 76 S.Ct. 141, 100 L.Ed. 775 (1955); Johnson v. State, 223 Miss. 56, 76 So.2d 841 (1955); State v. Chinn, 87 So.2d 315 (1955); Wright v. U.S., 250 F.2d 4 (1957); Commonwealth v. Chester, 337 Mass. 702, 150 N.E.2d 914 (1958); U.S. v. Hopkins, 169 F.Supp. 187 (Md. Dist- 1958); State v. White, _ Wash. - 375 P.2d 942 (1962). 39. " . . . when M'Naghten is used, all those who might possibly be deterred from the commission of criminal acts are included within the sanctions of the criminal law." State v. White, - Wash.... 374 P.2d 942, 966 (1962). 40. Note, The Defense of Insanity at the Time of the Act in Criminal Cases in Iowa, 32 IOWA L. REv. 714, 718 (1947). 41. Hoedemaker, "Irresistible Impulse" As A Defense in Criminal Law, 23 WASH. L. REV. 1, 7 (1948). 42. HOOVER UNIFORM CSuME REPORTS 34-37 (Dept. of Justice, vols. 1959-1961). 1963 COMMENTS

AVG.TOTAL AVG. TOTAL CRIME RATE CRIME RATE STATE PER 100,000 POP. STATE PER 100,000 POP. Alabama ...... 733.2 Georgia* ...... 872.2 Kentucky ...... 761.5 Tennessee ..... 834.0 Vermont ...... 586.0 Maine ...... 497.0 Virginia ...... 823.7 North Carolina .... 675.1 Wyoming ...... 841.8 Montana ...... 903.7 *'Georgia supplements M'Naghten with the defense of delusional in- sanity.

Not only is the argument unsupported statistically, however; it seems to be logically unsound as well. If one acts on an impulse that is truly irresistible, no penalty, regardless of how severe, can influ- ence him. 43 To maintain otherwise is quite clearly a contradiction of terms. Lastly, the argument seems to ignore completely one of the most im- portant factors involved in any deterrent theory. It is elementary that in order for a person to be deterred from committing a crime he must be aware of that penalty which is supposed to deter him-a strict definition of insanity in this case. When courts advance the proposi- tion that the M'Naghten Rule deters some criminals who would not otherwise be deterred under a more liberal test, they are necessarily assuming that the common criminal has knowledge of the differences in the tests for insanity. The assumption seems to be unwarranted and lack evidential support. It would not seem unreasonable to assume the contrary-that most criminals are not even aware of the different tests for insanity until after their have been committed. If this is true, then how could differences in the tests for insanity have any deterrent effect whatever?

THE IRRESISTIBLE IMPULSE TEST IS TOO HARD TO APPLY A third argument popularly advanced in support of the M'Naghten Rule is that the irresistible impulse test is harder to apply than the M'Naghten Rule: The difficulty of distinguishing between uncontrolled im- pulse and the impulse that is not controlled would take too fertile a dilectorial field.44 This argument, however, seems to assume that the M'Naghten Rule

43. State v. White, _ Wash _ 374 P.2d 942, 970 (1962) (dissenting opinion). 44. Henderson, Psychiatry and the Criminal Law, 4 PSYCHIATRY Q. 103; HAMLEN SMITH, PSYCHOLOGY AND THE CRIMINAL LAW 179. MERCER LAW REVIEW [Vol. 14

is easier to administer. How so? Why is it any easier to determine whether a man acted without knowing the difference between right and wrong, than it is to determine whether he acted on an irresistible impulse? It would seem that there is equal difficulty in the applica- tion of either rule. Both tests are equally definite in that they both give precise definitions of what constitutes legal insanity, and both are equally vague in that neither define what is meant by "mental disease" or "mental defect." The difficulties in applying either rule seem to be inherent within the subject of insanity itself rather than characteristic of the differences between the two tests: The objection that irresistible impulse is difficult to prove is not an adequate reason for rejecting the defense. A similar objection may be made to other types of mental disease. This was clearly recognized by the Supreme Court of Utah in an opinion by Hansen, J., who states that "Insanity in all its forms is frequently difficult to determine with certainty, and yet courts all recognize that, if an accused does not know right from wrong, and does not know the nature and quality of the act charged he should not be punished." Some physical diseases are difficult to prove,[ 45] yet it is not likely that a court would refuse to receive evidence, other- wise admissible, of the existence of any of these diseases mere- 46 ly because of the difficulty of proof. Somerville, J., speaking in Parsons v. State,47 says: It is no satisfactory objection to say that the rule above an- nounced by us is of difficult application. The rule in Mc- Naghten's Case is equally obnoxious to a like criticism. The difficulty does not lie in the rule, but is inherent in the subject of insanity itself. Even conceding, however, that the irresistible impulse test is some- what more difficult to apply than the M'Naghten Rule alone, does this justify refusing to administer it? In other areas of the law, such as actions for interference with peace of mind and invasions of right of privacy, it is generally held that administrative difficul- ties do not justify denying remedies to persons when justice dictates that those persons should have them. 48 There seems to be no reason why the same principal should not apply to the criminal law as well. Moreover, it would not seem, judging from the available evidence,

45. For example, multiple sclerosis, chronic gastritis, coronary disease, and trach- oma. 46. Keedy, Irresistible Impulse As A Defense in the Criminal Law, 100 U. PA. L. Rpv'. 956, 990 (1952); State v. Green, 78 Utah 580, 600, 6 P.2d 177, 185 (1931). 47. 8 Ala. .557, 593 (1887). 48. 'State Rubbish Collectors Ass'n y. Siliznoff, 38 Cal.2d 330, 240 P.2d 282 (1952); Melvin v. Reid, 112 Cal. App. 285, 297 P. 91 (1931). 1963] COMMENTS 4X5

'that the increased difficulties encountered in administering the ir- resistible impulse test, if there are any increased difficulties, are such that make the test impossible or impractical to apply. An over- whelming number of foreign countries and an increasing number of jurisdictions within this country employ the irresistible impulse test in conjunction with the M'Naghten Rule. They have not found, evi- dently, that the test is so impractical to administer that it need be excluded from the tests for legal insanity. They include, in addition to the seventeen jurisdictions within the United States listed previously in this article, 49 the foreign jurisdictions of Italy, Switzerland, Poland, Turkey, Soviet Republics, Hungary, Czechoslovakia, Bulgaria, Greece, Yugoslavia, Siam, Argentina, Brazil, Costa Rica, Dominican Republic, Ecuador, Haiti, Panama, Peru, Uruguay, Venezuela, Colombia, Hon- duras, Mexico, France, Denmark, Belgium, Germany, Luxembourg, Scotland, three of the six states of Australia and the Cape of Good 50 Hope in South Africa.

WHY SHOULD IRRESISTIBLE IMPULSES ARISING FROM MENTAL DISEASE OR DEFECT CONSTITUTE A DEFENSE? In addition to the fact that the arguments against including the ir- resistible impulse test into tests for legal insanity seem to lack validity, there are two major affirmative reasons favoring its inclusion. First, it has been observed that the M'Naghten Rule deals solely with the ability of the defendant to distinguish between right and wrong at the time of the crime. It takes no notice of the volitive ele- ment of the conduct. 51 The irresistible impulse test does not ignore this volitive element, but provides exculpation in cases where the absence of volition, 52 if caused by mental disease or defect, is suf- ficient to render the defendant incapable of controlling his conduct. The essential question, then, is whether the absence of volition should criminal conduct. It is a well-recognized principle of the criminal law that mere in- tent to commit a crime is not a crime. 53 The intent must be supple- mented either by an act, 54 or by a criminal omission to act in a

49. See p. 419, supra. 50. Keedy, Irresistible Impulse As A Defense in the Criminal Law, 100 U. PA. L. REV. 956, 966-976 (1951). 51. State v. White, _ Wash. -, 374 P.2d 942, 970 (1962) (dissenting opinion). 52. "The 'act of willing' or the 'power of willing'." 2 Thorndike Barnhart Com- prehensive Desk Dictionary 863 (1962). 53. State v. Quick, 199 S.C. 256, 19 S.E.2d 101 (1942); State v. Rider, 90 Mo. 54, 1 S.W. 825 (1886); Dugdale v. Regina, 1 El. & Bl. 435, 118 Eng. Rep. 499 (1835) ; Rex v. Martin, 3 Car. P. 211, 172 Eng. Rep. 390 (1827). 54. "An act is the bodily movement which follows immediately upon a volition." MARKLY, ELEMENTS OF LAw §215 (4th ed. 1899); State v. Quick, note 53, supra. MERCER LAW REVIEW [Vol. 14

prescribed manner,5 5 concurring in point of time with the intent to 57 commit the crime.56 In both cases, volition is an essential element. Since one engaging in conduct as a result of an irresistible impulse has, by definition, no volition, it is elementary that he cannot act or criminally omit to act. It follows, then, that applying the prin- ciple that an act or criminal omission to act is essential to crime, such a person cannot be guilty of a crime. The result of the application of the M'Naghten Rule as the sole test of legal insanity, then, is a result totally inconsistent with the basic principles of criminal law, and as such, is an obvious injustice to the defendant. A second reason for adopting the irresistible impulse test as a sup- plement to the M'Naghten Rule, is that contrary to the assertion that its adoption would increase crime,5 8 there is authority for the pro- position that its adoption, if anything, would really decrease crime:

The mental competency of recidivists should be questioned by realistic means at the earliest possible stage. So long as the courts judge criminal responsibility by the test of knowl- edge of right and wrong, psychotics who have served prison terms or are granted probation are released to commit in- creasingly serious crime, repeating crime and incarceration and release until murder is committed. Instead of being treated as are ordinary criminals, they should be confined to institutions for the insane at the first offense and not be released until or unless cured.5 9

SUMMARY AND CONCLUSION This article has sought to examine realistically the controversy sur- rounding the irresistible impulse test as a defense for criminal con- duct. It has endeavored to demonstrate first, that such impulses as a result of mental disease do indeed exist; second, that the arguments advanced by its opponents are not sufficient to justify its exclusion; and third, that there is a manifest for its inclusion into tests for legal insanity. Assuming the success of these endeavors, it is the conclusion of this writer that a defendant should not be held criminally responsible for his conduct if such conduct was caused by an irresistible im- pulse arising from a mental disease or mental defect.

55. Anderson v. State, 27 Tex. App. 177, 11 S.W. 33 (1899). 56. PERKINS, CRIMINAL LAW 725 (1957). 57. In order to be liable criminally," . . . the offender must have been 'able to help' his conduct." CLARK, ELEMENTS OF CRIMINAL LABILITY 109 (1880). Ac- cord, 4 Comm. 20 (1769); HOLMES, THE 54 (1881). 58. Note 39, supra. 59. BIGGS, THE GUILTY MIND 144 (1955).