People v. Serravo

Justice VOLLACK

dissenting:

The majority holds that the phrase, “incapable of distinguishing right from wrong,” means a mental incapacity to know that an act is wrong under existing societal standards of morality. In addition, the majority rejects the characterization of the deific decree as an exception to the right-from-wrong test and holds that a defendant may be judged legally insane when the defendant’s cognitive ability to distinguish right from wrong with respect to an act has been destroyed as a result of a psychotic delusion that God has ordered the act. Finally, the majority holds that federal and state principles of double jeopardy prohibit the retrial of the defendant on the issue of his sanity at the time of the commission of the act charged against him. Maj op. at 130. I disagree with the majority’s holdings in this case.

I.

The issue raised in this case is the meaning of the phrase, “incapable of distinguishing right from wrong,” in section 16-8-101(1), 8A C.R.S. (1986). In determining the meaning of “incapable of distinguishing right from wrong,” this court must look first and foremost to the language of the statute to determine whether the General Assembly adopted a legal or moral standard for determining criminal insanity when they enacted section 16-8-101(1).

*143A.

The origin of criminal insanity tests is M’Naghten’s Case, 8 Eng.Rep. 718 (1843). In M’Naghten, the judges determined that a defendant is not criminally responsible (1) where the defendant does not know the nature and quality of his act, or (2) where he does not know right from wrong with respect to that act. M’Naghten, 8 Eng. Rep. at 722; State v. Boan, 235 Kan. 800, 686 P.2d 160, 167 (1984); Wayne LaFave & Austin Scott, Criminal Law § 4.2, 311 (2d ed. 1986). Since the M’Naghten decision in 1843, American courts and legislatures have adopted various tests to determine criminal responsibility. Some courts have adopted the M’Naghten test, see State v. Hamann, 285 N.W.2d 180 (Iowa 1979); other courts have adopted the American Law Institute Model Penal Code (Official Draft and Revised Comments 1985) [hereinafter cited as “Model Penal Code”] test (the ALI-MPC test),1 see Christopher v. State, 511 N.E.2d 1019 (Ind.1987); while still other courts have adopted modifications of these two tests or completely different tests. See Durham v. United States, 214 F.2d 862 (D.C.Cir.1954) (adopting modern “product” test). But see United States v. Brawner, 471 F.2d 969 (D.C.Cir.1972) (abandoning Durham product test and adopting ALI-MPC test).2

In Colorado, the test of criminal responsibility, which has been codified in section 16-8-101(1), is the “right from wrong” prong of the test announced in M’Naghten, 8 Eng.Rep. 718 (1843). People v. Low, 732 P.2d 622, 629 n. 9 (Colo.1987); Castro v. People, 140 Colo. 493, 507, 346 P.2d 1020, 1027 (1959). Section 16-8-101(1) states:

(1) The applicable test of insanity shall be, and the jury shall be so instructed: “A person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act is not accountable. But care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives, and kindred evil conditions, for when the act is induced by any of these causes the person is accountable to the law.”.

(Emphasis added.)

B.

Next, the language in section 16-8-101(1) must be placed in context with the language from other tests for insanity. Section 16-8-101(1) does not follow the language from the American Law Institute Model Penal Code (ALI-MPC) test.3 The *144ALI-MPC test states that a person is not criminally responsible if “he lacks substantial capacity ... to appreciate the criminality [wrongfulness] of his conduct.” Under this test, jurisdictions have the option to adopt either the “wrongfulness” or “criminality” standard.4 ABA Criminal Justice Mental Health Standards [hereinafter “ABA Mental Health Standards”] § 7-6.1, at 344 (1986). The “wrongfulness” standard was intended by the drafters of the ALI-MPC test to establish a broader, moral criterion for determining criminal responsibility. See United States v. Segna, 555 F.2d 226, 232 (9th Cir.1977)5; ABA Mental Health Standards § 7-6.1, at 344. Courts that have adopted the ALI-MPC “wrongfulness” language have followed the intent of the ALI-MPC drafters and defined “wrongfulness” as morally wrong. See United States v. Dubray, 854 F.2d 1099, 1101 (8th Cir.1988) (stating that the Eighth and Ninth Circuits recognize that “wrongfulness” means moral wrongdoing).

Colorado has not adopted the ALI-MPC “wrongfulness” language.6 On the contrary, section 16-8-101(1) adopted the “right from wrong” language enumerated in M’Naghten. Accordingly, case law defining criminal responsibility based on the “wrongfulness” language is not persuasive, or even applicable, to our determination of the meaning of “incapable of distinguishing right from wrong” in section 16-8-101(l).7

C.

The majority fails to define the phrase, “incapable of distinguishing.” However, the General Assembly’s adoption of this language is important for two reasons. First, because M’Naghten focuses on the cognitive capacity of the person, this phrase indicates the level of cognition that is necessary for a person to be determined insane. Second, the General Assembly’s use of this phrase indicates the legislature’s intent to adopt a rigid test of insanity similar to the original M’Naghten test.

The original M’Naghten formulation was a rigid standard and required that a person be totally devoid of cognitive ability before they could be found insane. See Wade v. United States, 426 F.2d 64 (9th Cir.1970); ABA Mental Health Standards § 7-6.1, at 333, 344. Accordingly, modern tests, such as the ALI-MPC test, the ABA standard, and the federal standard, adopted language such as “finable to appreciate the wrong*145fulness” or “lacks substantial capacity to appreciate the wrongfulness.” See Model Penal Code § 4.01; ABA Mental Health Standards § 7-6.1, at 330, 345 (use of term “appreciate” provides flexibility to “take into account all aspects of a defendant’s mental and emotional functioning”); 18 U.S.C. § 17 (1983). These tests discarded the term “know,” which was used in M’Naghten, in favor of language that provided more flexibility and indicated that the defendant was not required to be totally incapacitated in order to be found criminally insane. See Wade, 426 F.2d at 71; ABA Mental Health Standards § 7-6.1, at 333, 343-44.

The General Assembly did not adopt the “unable to appreciate” language. In fact, use of the phrase, “incapable of distinguishing,” 8 indicates an intent to adopt a restrictive standard similar to the original interpretation of M’Naghten that a defendant must be totally devoid of cognitive capacity to satisfy the test of insanity in section 16-8-101(l).9 The majority, by not defining the phrase, “incapable of distinguishing,” disregards the language in the statute and the intent of the General Assembly.

The phrase, “incapable of distinguishing right from wrong,” incorporates the same limited meaning of criminal insanity that the M’Naghten judges enumerated. During hearings on H.B. 1289, which amended the definition of insanity in 1983, the bill’s sponsor stated: “[I]f a person is truly so far gone he cannot tell the difference between right and wrong, ... that is what the definition of insanity should be.” Hearings on H.B. 1289 Before the House Judiciary Committee, 54th Gen. Assembly, 1st Reg. Sess. (Audio Tape 83-8, Feb. 15, 1983, at 2:15 p.m.). Under this limited meaning of criminal insanity, a defendant is not criminally insane if the defendant was “conscious” that the particular act was “contrary to the law of the land.” M’Naghten, 8 Eng.Rep. at 722-23; see also Regina v. Windle, 2 Q.B. 826 (1952) (“right from wrong” means “contrary to law”); State v. Hamann, 285 N.W.2d 180 (Iowa 1979) (“right from wrong” refers to “legal right or wrong”). Thus, the focus under M’Naghten, and section 16-8-101(1), is whether the defendant is so devoid of cognitive capacity that the defendant’s mental status prevented the defendant from being “conscious” that his or her conduct was forbidden by the law.

D.

The majority concludes, relying on what is essentially dicta from a 1915 New York case, People v. Schmidt, 216 N.Y. 324, 110 N.E. 945 (1915),10 that “wrong” means *146whether the defendant knows that an act is wrong by society’s morals. The express language of the M’Naghten decision, however, supports neither the majority’s nor the Schmidt opinion, but instead indicates that “right from wrong” was meant to be legal right from wrong.

First, nowhere in any of the M’Naghten judges’ answers does the word “moral” appear. Secondly, the M’Naghten judges’ answer to the first question clearly expresses the view that a person is punishable if that person “knew at the time of committing their crime that he was acting contrary to law.”11 Both the Schmidt court and the majority, however, relied on the answer to the second and third questions in M’Naghten to support their conclusion.

In Schmidt, the court stated that the “judges [in M’Naghten] expressly held that a defendant who knew nothing of the law would nonetheless be responsible if he knew that the act was wrong.” Schmidt, 110 N.E. at 947 (emphasis added). From this premise, the Schmidt court concluded “by which, therefore, [the M’Naghten judges] must have meant, if you knew that it was morally wrong.” Id. This conclusion is unsupported, however, because nowhere in the answer to the second and third questions do the M’Naghten judges “expressly” or impliedly hold what the Schmidt court states they hold.

Relying on the tenuous reasoning in Schmidt, the majority states that the M’Naghten judges’ answer to the second and third questions “qualifies the reference to ‘law of the land’ in the first answer” and “suggests that a person may be considered legally sane as long as the person commits an act contrary to law and knows that the act was morally wrong without regard to the person’s actual knowledge of its illegality under positive law.” 12 The majority, and Schmidt, opinions’ interpretation of the answer to the second and third questions, in my view, disregards the plain meaning of the M’Naghten answers.

The answer to the second and third questions does not “qualify” the first answer, as the majority states, but instead explains the first answer by stating how the jury should be instructed.13 The best way to demonstrate this is with the aid of a hypothetical. A defendant is charged with murder and pleads insanity. In such a case, the M’Naghten judges state that the question of the defendant’s sanity should not be put to the jury “generally and in the abstract.” M’Naghten, 8 Eng.Rep. at 723. By this they meant that the jury should not be asked whether the defendant knew that murder was against the law. If the court submits the instruction “generally and in the abstract,” the court would be asking the jury, on the one hand, whether the *147defendant actually knew murder was against the law, while on the other hand, the defendant is presumed to know the law. Such a request would confuse the jury. Id.

To avoid such confusion, the judges stated that the question should be put to the jury “with reference to the party’s knowledge of right and wrong, in respect to the very act with which he is charged.” Id. By this they meant whether the defendant was “conscious” that the particular act he or she committed (whatever it is labeled by the state) was against the law.14 Such an interpretation flows logically from a reading of the answer to the second and third questions and complements, instead of conflicts with, the answer to the first question.15

Section 16-8-101(1) is a codification of the M’Naghten right from wrong test. People v. Low, 732 P.2d 622, 629 n. 9 (Colo.1987); Castro v. People, 140 Colo. 493, 346 P.2d 1020 (1959). The M’Naghten rule looks exclusively to the cognitive capacity of the accused, United States v. Freeman, 357 F.2d 606, 624 (2d Cir.1966), and contemplates as insane a person “who is totally devoid of cognitive ... capacity.” Wade v. United States, 426 F.2d 64 (9th Cir.1970). Under M’Naghten, even though the defendant committed the act under a delusion, “he is nevertheless punishable ... if he knew at the time of committing such crime that he was acting contrary to ... the law of the land.” M’Naghten’s Case, 8 Eng.Rep. at 722 (1843); see also State v. Boan, 235 Kan. 800, 686 P.2d 160, 168 (1984).

We should not leave to the jury the question of whether some particular act is morally right or wrong.

Only a part of a society’s moral standards becomes so fixed and agreed upon as to become law. Until a moral standard becomes law it is an unreliable test for insanity. We believe it is far more workable and a more accurate measure of mental health to test a defendant’s ability to understand what society has fixed and established as law.

State v. Hamann, 285 N.W.2d 180, 184 (Iowa 1979). During hearings on H.B. 1289, which amended the definition of insanity in 1983, the bill’s sponsor stated: “As far as testifying to the ultimate question of sanity or insanity, you have a legal issue, sanity and insanity are legal terms and I believe they should stay in the realm of legality and not in the realm of medical science.” Hearings on H.B. 1289 Before the House Judiciary Committee, 54th Gen. Assembly, 1st Reg. Sess. (Audio Tape 83-8, Feb. 15, 1983, at 2:15 p.m.). This court should follow the intent of the General Assembly, and the plain meaning of M’Naghten, and conclude that the General Assembly adopted a legal standard for determining criminal insanity in section 16-8-101(1).

II.

I also disagree with the majority’s decision concerning the deifie decree exception recognized by the court of appeals. The deifie decree exception is a narrow exception recognized by a small minority of those states which define wrong by society’s moral standards. State v. Crenshaw, 659 P.2d 488, 494 (Wash.1983). This exception has been applied in cases where a defendant knew an act was legally wrong but believed, because of a mental defect, that God decreed the act. Id. A person qualifies as insane under this exception only if their free will has been overcome by their belief in the deifie decree. State v. Rice, 110 Wash.2d 577, 757 P.2d 889, 904 (1988).

The majority states, however, that the deifie decree exception “is not so much an exception to the right from wrong test measured by existing societal standards of *148morality as it is an integral factor in assessing a person’s cognitive ability.” Maj op. at 139. The majority then holds that a defendant may be adjudged insane when the defendant’s cognitive ability to distinguish right from wrong has been destroyed as a result of a psychotic delusion that God has decreed the act. Maj. op. at 140. By limiting the type of delusion that might constitute insanity to a “delusion that God commanded the act,” however, the majority goes beyond the scope of the M’Naghten test in section 16-8-101(1) and consequently creates an exception by incorporating a subjective standard — a person’s religious inclinations and beliefs — into section 16-8-101(1).

In Colorado, neither the General Assembly nor this court has accepted subjective tests to determine criminal responsibility. In the 1983 revision of section 16-8-101, the legislature deleted the volitional prong of the insanity definition. See Ch. 188, sec. 1, § 16-8-101, 1983 Colo.Sess.Laws 672; Hearings on H.B. 1289 Before the House Judiciary Committee, 54th Gen. Assembly, 1st Reg. Sess. (Audio Tape 83-8, Feb. 15, 1983, at 2:15 p.m.). By deleting the volitional prong, the legislature eliminated any focus on an individual’s subjective behavior and restricted the insanity defense only to those cases where the defendant was incapable of distinguishing right from wrong. See Sarah Sammons, Legislative Update, 12 ColoXaw. 1251, 1252 (1983).

Similarly, this court has refused to adopt subjective standards for determining criminal responsibility. In Castro v. People, 140 Colo. 493, 346 P.2d 1020 (1959), the defendant claimed that he was deprived of due process and equal protection of the laws because the insanity statute was so at variance with scientific fact that it was impracticable and unworkable. The court stated the defendant’s position as follows:

[T]he test should be the accused’s ability to emotionally and intellectually realize and appreciate, as an integrated personality, the nature and consequences of the moral choice presented, and that the mere ability to verbalize a correct answer to questions about the distinction should not be accepted as conclusive on the issue of criminal responsibility.

Id. at 507-08, 346 P.2d at 1028 (quoting Annotation, Modem Status of the M’Naghten “Right-and-Wrong” Test of Criminal Responsibility, 45 A.L.R.2d 1447, 1450 (1956)). The court concluded that the statute had adopted the M’Naghten right from wrong test and refused to follow the defendant’s position that a subjective standard should be used to determine criminal responsibility. Id. at 507-09, 346 P.2d at 1027-28.

Thus, the General Assembly has rejected a subjective standard for measuring a defendant’s behavior, while this court has rejected a subjective standard for determining whether a defendant is criminally responsible. The focus under M’Naghten, and section 16-8-101(1), should be whether the defendant’s mental status prevented the defendant from being “conscious” that his or her conduct was forbidden by the law. Accordingly, under the current statute, I would reject the subjective deific decree exception, either in the form adopted by the court of appeals or in the form adopted by the majority.

III.

I also disagree with the majority’s conclusion “that a retrial of the defendant would violate the federal and state constitutional prohibitions against placing an accused twice in jeopardy for the same offense. U.S. Const, amend. V; Colo. Const, art. II, § 18.” Maj. op. at 140. I disagree because, under the bifurcated trial system, a defendant is not placed in jeopardy during the sanity phase of the trial.

“The constitutional prohibition against double jeopardy means that no person shall twice be put in danger of conviction and punishment for the same offense.” People v. King, 181 Colo. 439, 444, 510 P.2d 333, 336 (1973). Jeopardy does not attach until “the defendant is present at a judicial proceeding aimed at reaching a final determination of his guilt or innocence.” People v. Paulsen, 198 Colo. 458, 460, 601 P.2d 634, 636 (1979). “Without a risk of a determination of guilt, jeopardy does not attach, and *149neither an appeal nor further prosecution constitutes double jeopardy.” Serfass v. United States, 420 U.S. 377, 391-92, 95 S.Ct. 1055, 1064-65, 43 L.Ed.2d 265 (1974); see also State v. Rodriguez, 67 Haw. 70, 679 P.2d 615, 622 (1984) (Relying on Ser-fass, the court states that “[djouble jeopardy does not attach unless there is a risk of a determination of guilt.”), cert. denied, 469 U.S. 1078, 105 S.Ct. 580, 83 L.Ed.2d 691 (1984). Under the bifurcated trial system, the defendant does not face a conviction or “a risk of a determination of guilt” during the sanity phase of the trial. Thus, jeopardy does not attach.

A.

The majority, however, relying on Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), overrules People v. King, 181 Colo. 439, 444, 510 P.2d 333, 336 (1973), in which this court reversed the trial court’s direction of an insanity verdict and held that a retrial of the defendant would not violate the double jeopardy clauses of the federal and state constitutions.

In Burks, the defendant was charged with robbing a bank, and raised the insanity defense. In a non-bifurcated trial, the case was submitted to the jury to determine whether the defendant was guilty, not guilty, or not guilty by reason of insanity. The jury returned a verdict of guilty. The defendant appealed the conviction, claiming that the evidence was insufficient to prove he was sane beyond a reasonable doubt. The Sixth Circuit agreed with the defendant and reversed defendant’s conviction. The court then remanded the case “for a determination of whether a directed verdict of acquittal should be entered or a new trial ordered.” Id. 437 U.S. at 4, 98 S.Ct. at 2143.

The United States Supreme Court granted certiorari to determine “whether a defendant may be tried a second time when a reviewing court has determined that in a prior trial the evidence was insufficient to sustain the verdict of the jury.” Id. The Court held that “the double jeopardy clause precludes a second trial once the reviewing court has found the evidence legally insufficient.”

I disagree with the majority’s reliance on Burks for two reasons. First, Burks was a non-bifurcated trial in which the jury had to decide between a verdict of guilty, not guilty, or not guilty by reason of insanity. The defendant in Burks faced possible conviction for his crimes, and thus, under federal and state double jeopardy principles, jeopardy attached.

Under the bifurcated trial system, however, the defendant is not subjected to the possibility of conviction for the crime charged during the sanity trial. See § 16-8-105, 8A C.R.S. (1986). “The sanity trial is designed to determine whether the defendant was sane or insane at the time of the alleged offense, and the issue of guilt or innocence plays no part in the resolution of this issue.” People v. Morgan, 637 P.2d 338, 341 (Colo.1981) (emphasis added). Thus, a defendant is not placed in jeopardy during the sanity phase of the trial, and jeopardy does not attach.

Second, the majority concludes that

[bjecause Burks holds that an appellate determination of evidentiary insufficiency to sustain a verdict is an adjudication on the merits that bars retrial, it necessarily follows that the Double Jeopardy Clause of the United States Constitution prohibits retrial after a jury verdict of not guilty by reason of insanity. Such a verdict represents a judicial determination that, irrespective of any error in a trial court’s instructional rulings, the prosecution has failed to prove the defendant’s sanity beyond a reasonable doubt and that, consequently, the defendant lacked the mental capacity to commit the crime charged against him.

Maj. op. at 141. However, the fact that the prosecution failed to prove the defendant’s sanity does not mean that “the defendant lacked the mental capacity to commit the crime charged against him.” A not-guilty-by-reason-of-insanity verdict does not address the elements of the crime charged. Insanity “addresses the issue of whether the defendant has sufficient mental capacity to be held accountable for any crimes he may have committed. It does not answer the question of whether the defen*150dant was capable of forming a particular mental state required for a conviction of the substantive charge. This determination is left for another jury, pursuant to section 16-8-104, C.R.S.1973 (1978 Repl. Vol. 8).” People v. Morgan, 637 P.2d 338, 342 (Colo.1981) (emphasis added); see also § 16-8-101(1) (person “incapable of distinguishing right from wrong with respect to that act is not accountable ”); § 18-1-802, 8B C.R.S. (1986) (“A person who is insane, as defined in section 16-8-101, C.R.S., is not responsible for his conduct defined as criminal.”).

The jury in a sanity trial is only asked to determine whether the defendant is sane or insane, and not whether the defendant lacked the requisite culpable mental state to commit the crime. See Morgan, 637 P.2d at 341-42. Thus, under our statute and procedures, a not-guilty-by-reason-of-insanity verdict is not an adjudication on the merits, as the majority contends.

In this case, the sanity trial was not aimed at reaching a final determination of the defendant’s guilt or innocence, and was not the equivalent of an adjudication on the merits. Accordingly, the sanity trial does not preclude the retrial of the defendant.

I would reverse the court of appeals and district court, and remand the case for a new sanity trial.

. This test states:

(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.
(2) As used in this Article, the terms, “mental disease or defect" do not include an abnormality manifested only by repeated criminal or otherwise antisocial behavior.

American Law Institute Model Penal Code § 4.01 (Official Draft and Revised Comments 1985) (emphasis added).

. The "product" test stated that a defendant is "not criminally responsible if his unlawful act was the product of a mental disease or mental defect.” Durham v. United States, 214 F.2d 862, 874-75 (D.C.Cir.1954). The Brawner court abandoned the Durham product test because the Durham rule had the "undesirable characteristic ... of undue dominance by the experts giving testimony.” United States v. Brawner, 471 F.2d 969, 981-82 (D.C.Cir.1972). This “dominance by the experts” resulted because there was no generally accepted meaning of the “concept requiring that the crime be the 'product' of the mental disease.” Id. at 982.

.There are many insanity tests which have adopted variations of the language enumerated in the ALI-MPC test. See ABA Criminal Justice Mental Health Standards § 7-6.1 (1986). Prior to 1984, the federal courts used the ALI-MPC test to define insanity. In 1984, Congress enacted 18 U.S.C. § 17 (1983), which states:

It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

This section deleted the volitional prong of the ALI-MPC test but retained the "wrongfulness” language.

. The American Bar Association’s Criminal Justice Mental Health Standards state:

Use of the term criminality suggests to triers of fact that they ignore even the most florid effects of delusions and hallucinations in any case in which a defendant’s conduct would still be criminal had the delusions been true or the hallucinations real. The term wrongfulness, which focuses on the extent to which the convictions on the part of actors about their acts were influenced by their mental disorders, is therefore necessary to accommodate adequately the morally significant effects of severe mental illness.

ABA Criminal Justice Mental Health Standards § 7-6.1, at 344 (1986) (footnote omitted) (emphasis in original).

. In Segna, the court stated:

It is clear from the ALI debates leading to inclusion of the alternative word wrongfulness in the ALI test that the drafters intended that word to mean more than contrary to law. It is less clear, however, whether the drafters intended this expanded term to be measured objectively or subjectively,.... Nevertheless, the weight of the discussions points toward a preference for the [subjective meaning].

Segna, 555 F.2d at 232 n. 6 (citation omitted) (emphasis in original).

. The General Assembly’s intent not to include the ALI-MPC language and its meaning in § 16-8-101(1) is further supported by a clear reading of§ 16-8-101(2). The language from this § 16-8-101(2) is language adopted from the ALI-MPC test. Section 16-8-101(2) provides: "(2) The term ‘diseased or defective in mind’, as used in ' subsection (1) of this section, does not refer to an abnormality manifested only by repeated criminal or otherwise antisocial conduct.” Compare supra note 1. Thus, the General Assembly did consider the ALI-MPC language in enacting § 16-8-101. However, while the General Assembly adopted the ALI-MPC language in subsection (2), it clearly rejected the ALI-MPC "wrongfulness’’ language in part (1) of the statute in favor of the M’Naghten “right from wrong” language.

. Thus, the majority's reliance on United States v. Brawner, 471 F.2d 969, 976 (D.C.Cir.1972), is misplaced. See maj. op. at 137-138. In Brawn-er, the court abandoned the Durham product *145test and adopted the ALI-MPC test. See supra note 2.

. “Incapable” is defined as "lacking capacity, ability, or qualification for the purpose or end in view; ... lacking legal qualification or power especially because of some fundamental legal disqualification." Webster’s New International Dictionary 1141 (3rd ed. 1969).

. While requiring the defendant to be totally devoid of cognitive capacity may seem harsh, we must remember that the insanity defense is just one part of the statutory scheme of mental-illness defenses in Colorado. Defendants who suffer from mental illnesses, but are not totally devoid of their cognitive capacity, may still have their mental illness considered under the impaired-mental-condition defense. § 18-1-803, 8B C.R.S. (1986).

The majority opinion, however, suggests that something less than total incapacity is sufficient under § 16-8-101(1). Under the majority’s theory, a defendant who knows an act is against the law but is not sure of the act's moral consequences may be legally insane. This does not satisfy the insanity test under M’Naghten and § 16-8-101(1) because someone who is conscious that the act they are performing is against the law is not totally devoid of cognitive capacity. Such a defendant, however, may still resort to one of the other mental-illness defenses.

.In Schmidt, the defendant was arrested for murder and initially pleaded insanity, claiming that the voice of God commanded him to kill the victim as a sacrifice. The defendant was convicted of murder. After trial, the defendant motioned for a new trial claiming newly discovered evidence. In the motion, the defendant stated that his original story was false. He claimed that he fabricated the insanity claim and conceded that his sanity was correctly decided by the jury. The defendant requested a new trial based on this evidence. After discussing the meaning of “wrong” in the New York statute and concluding that “wrong” meant "morally wrong,” the court stated: “It is of no importance now whether the trial judge charged the jury correctly upon the question of insanity, because in the record before us the defendant *146himself concedes that he is sane, and that everything which he said to the contrary was a fraud upon the court." Schmidt, 110 N.E. at 950.

. In M’Naghten, the House of Lords submitted five questions to the Queen’s Bench asking the proper standard of legal insanity. The answers to the five questions have become the law of the case. See generally Wayne LaFave & Austin Scott, Criminal Law § 4.2 (2d ed. 1986).

. The majority draws a distinction between society’s morals and the positive law. I disagree with such a distinction. Our positive law is nothing more than society’s morals as reflected through our majoritarian form of government. Accordingly, they are one and the same.

. The relevant part of the answer to the second and third questions states:

The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused at the time of doing the act knew the difference between right and wrong: which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put generally and in the abstract, as when put with reference to the party's knowledge of right and wrong, in respect to the very act with which he is charged. If the question were to be put to the knowledge of the accused solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction; whereas the law is administered upon the principle that everyone must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable[.]

M'Naghten, 8 Eng.Rep. at 722-23.

. Thus, if a defendant knows that stabbing his wife is against the law, he is conscious that the act was one he ought not to do.

. Moreover, in England, the M’Naghten test has been interpreted as meaning "contrary to law” and not according "to the opinion of one man or a number of people on the question whether a particular act might or might not be justified.” Regina v. Windle, 2 Q.B. 826 (1952) (rejecting the argument that under the M’Naghten test the phrase "right and wrong” should be taken in the moral rather than legal sense).