I dissent. My views are expressed at length in a dissent in the case of People v. Troche, ante, p. 35 [273 P. 767]. Nothing appears in the opinion in this case that alters these views. We do get this fact clearly, however, that the division of opinion between us rests upon the proposition of whether the plea *Page 79 of insanity is or is not a separate plea in fact. In this case Mr. Justice Richards declares it to be a separable plea akin in independent status to the plea of former acquittal or conviction or once in jeopardy. If I could even for a moment accede to this proposition it would take all the violence out of this dissent. But I cannot come to this view. This statement ignores the basis of all criminal law.
A sound mind is the foundation upon which rests all responsibility to the sovereign for inhibited conduct. Every crime presupposes a sound mind, guiding and directing the criminal agency. If the party charged is insane, the act is not his act and his vindication is as complete and in essence the same as though he had not in fact perpetrated the deed. As said in State v. Strasburg, 60 Wn. 106, 119 [Ann. Cas. 1912B, 917, 32 L.R.A. (N.S.) 1216, 110 P. 1020, 1024]:
"We believe enough has been said to show that the sanity of the accused at the time of committing the act charged against him has always been regarded as much a substantive fact, going to make up his guilt, as the fact of his physical commission of the act. It seems to us the law could as well exclude proof of any other substantive fact going to show his guilt or innocence. If he was insane at the time to the extent that he could not comprehend the nature and quality of the act — in other words, if he had no will to control the physical act of his physical body — how can it in truth be said that the act was his act? To take from the accused the opportunity to offer evidence tending to prove this fact is in our opinion as much a violation of his constitutional right of trial by jury as to take from him the right to offer evidence before the jury tending to show that he did not physically commit the act or physically set in motion a train of events resulting in the act. The maxim, `An act done by me against my will is not my act,' may, without losing any of its force, be paraphrased to fit our present inquiry as follows: `An act done by me without my will, or in the absence of my will, is not my act.'"
Take the crime of murder in the first degree — the one before us. Is anyone ready to say that a defendant insane is capable of forming the intent to murder or of possessing the malice or of doing the premeditation and deliberation necessary to make the crime complete? Certainly not. Our *Page 80 statute specifically provides that criminal intent is the manifestation of a sound mind (sec. 21, Pen. Code). Our statute also says than an insane person is not amenable to punishment (sec. 26, Pen. Code). Then, I repeat that the plea of not guilty contains within it indissolubly the plea of insanity. No legislative declaration can remove it, and it bears no resemblance to the special pleas enumerated above, but does bear a resemblance to the issue of self-defense or not guilty because of noncommission of the interdicted act.
It seems constantly to be overlooked that the verdict required in this bifurcated trial is not merely whether the defendant did or did not do the prohibited act. If this were alone the issue, the main opinion would be sound and the plea would be separable. But this is not the case — the jury are required to convict or acquit — and to convict the sanity of the defendant must first be found to exist; this even though the jury from the circumstances of the crime, the res gestae, see that the defendant was and is insane.
I condemn the procedure because it requires a conviction of the crime charged while excluding much of the material testimony upon the issue.
I condemn the procedure because it enables the state to curtail the deliberation of the jury and prevent the free agency of that body in its deliberations. If this is not true, why the inauguration of this cumbersome, useless and time-cheating experiment? The trial judges know the effect of the operation of this statute. The bar can easily discern its baneful effects. The plea of insanity is for practical purposes gone. Its loss will work the conviction of innocent men. It shocks the idealism of the citizen. It imputes vengeance to the sovereign. If the state wants to be fair and just with its citizenry, why arrest the jury in the midst of their deliberations, require a verdict of guilty to be recorded, and then return them to deliberate upon the accuracy of the decision so theretofore rendered? Crime will not be lessened by cruelty. It is certainly to be deplored that such a procedure is to be found among our statutes and it is my hope that the legislature will speedily rectify this injustice. *Page 81