dissenting.-/-In Boswell v. State, 63 Ala. 307, two material questions arose, on the subject of insanity : First, whether or not when that defense is set up, its existence must be proved by the accused, what measure of proof is required to establish it, and whether it is enough if the testimony raises a reasonable doubt of the prisoner’s sanity. We held it was defensive in its nature, and that the proof did not come up to the required standard, if it simply raised a reasonable doubt of its existence. As to the measure of proof, we applied the rule which obtains in civil cases, viz: 'ihat which reasonably satisfies the mind of a jury of the fact sought to be established.
The second question presented and 'considered in that case was, whether moral insanity was an excuse for an act otherwise punishable. We declared it was not; and in the category we included homicidal mania, irresistable impulse, and every other species of simply moral obliquity, provided the mental faculties were not shown to be unsound. Each of these principles was reaffirmed in Ford v. State, 71 Ala. 385.
The most important inquiry in Boswell’s case — the one chiefly relied on for reversal — was the first stated above; the onus and measure of proof. The testimony scarcely raised any other. Our own decisions had left that question in deplorable uncertainty, as we attempted to show. The English authorities, particularly the older ones, had given way to a more enlightened understanding of mental disorders. It was on that question, namely, the presumption of sanity, and the burden and manner of overcoming that presumption, that the opinion of the judges in the McNaghten Case, was quoted and relied on. All the judges except Maulé had concurred in advising the House of Lords “that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the coutrary is proved to their (the jury’s) satisfaction.” To this extent, the advice of the judges was pertinent to Bosiuell’s Gase, and for this purpose it was used. Beyond this the cases were unlike. McNaghten’s mental malady was presented to the judges as one of “mental delusion.” Their answers were given on the postulate that his mental disease was “partial delusion only,” and that he was not .“in other respects insane.” Hence we said in Boswell’s Gase: “It must not be overlooked, that the judges were considering a case of partial insanity ; the case of a person afflicted with insane delusion in respect to one or more particular subjects or persons.” On the other hand, in Boswell’s Gase, there was no pretense of mental delusion.
*599What we said on that question was simply a statement and citation of authorities, supporting and following the views of the judges, given in the McNaghten case. Its correctness or incorrectness was not material to a correct solution of the questions we were discussing ; and while the principle was quoted without dissent, there was nothing to cause us to inquire into or question its correctness. Our attention was not directed to the tests of crimiual accountability, except to that phase of it which is classed as moral insanity; and which we explicitelv declared was no defense to a prosecution for crime. I do not feel committed, by anything said in BoswelVs Case, to any proposition beyond the two principles stated above.
I summarize my views of the questions I propose to discuss, in the following brief paragraphs :
1. Insanity, when relied on as a defense to a prosecution for crime, is a mixed question of law and fact.
2. It is a perfect defense to an accusation of crime, if the accused, at the time, he committed the act, was afflicted with a mental disease to such extent, as to render him incapable of determining between right and wrong, or of perceiving- the true nature and quality of the act done.
3. When it is satisfactorily shown that the accused was mentally diseased at the time he did the act, charged as an offense, and that he did the act in consequence solely of such mental disease, without which
it would not have been done, this is a complete defense, even though the defendant knew the act was wrong.
4. When at the time of committing the act charged, the defendant w'as laboring under a disease of the mind, known as delusion, illusion, or hallucination, and the act done was solely the result of such mental disease, connected with and growing out of it as effect follows cause, and without which the act would not nave been done, the defendant should be acquitted on the plea of insanity. — Whar Or. Ev, § 336; 2 Greenl. Ev. § 372.
5. No form of moral or emotional insanity is a defense against a criminal accusation.
• I have considered the very able opinion of my brother Somerville with great care, and I differ from what I understand to be its declared principles only to a limited extent, to be commented upon further on. I have also read the legal authorities he relies on, but have not read, on this subject, the other authorities he refers to. Some of them, I fear, deal too much in the abstruse and metaphysical — refine too much — to become safe guides in judicial administration. Legal principles, when enunciated for the government of juries,' should, if possible, be expressed so simply and clearly, as to be easily understood by the class "of men who generally perform that service. Less than this is not properly instructing juries on questions of law, pertinent to the issues they are sworn to try.
*600I differ with my brother Somerville in the interpretation of some of the legal authorities he relies on as supporting his views, and, as to others, in the estimate he places upon them as authority. This court has repudiated the doctrine of moral insanity as a defense for conduct otherwise criminal ; and we hold that insanity is a defense to be affirmatively established by proof. It is not enough that a reasonable doubt of sanity is engendered. — Bosioell's Case, 63 Ala. 307; Ford's Case, 71 Ala. 385. Of the judicial authorities relied on by him, the following cases hold that the defense of insanity is made good, if the testimony raises a reasonable doubt of its existence. Some of them go so far as to hold that when any evidence of insanity is produced, the burden is then cast on the prosecution to establish sanity beyond a reasonable doubt. — State v. Jones, 50 N. H. 369 ; Bradley v. State, 31 Ind. 492 ; Hopps v. People, 31 Ill. 385; Cunningham, v. State, 56 Miss. 269 ; State v. Johnson, 40 Conn. 136.
In the opinion of my brother Somerville, the case of Felter, 25 Iowa, 68, is given a prominent place. The opinion in that case was prepared by the justly distinguished law writer and jurist, Chief Justice Dillon. The decision was in 1868. In considering the weight of that opinion, I remark, first, that it was pronounced by a court which holds that moral insanity is a defense to a criminal prosecution. Many of the expressions found in that opinion, and in the opinions of other courts entertaining similar views, are well chosen to express moral insanity and its workings. They are misleading, if not inappropriate, when used in description of intellectual unsoundness, or mental insanity. The defense relied on in that case was homicidal mania, the existence of which as mental disease, C. J. Dillon says, “both medicine and law now recognize.” Tet in that case, the distinguished judge said : “If this want of power of control arose from the insane condition of the mind of the accused, he should not be held responsible. But if want of power to control his actions arose from violent^ and ungovernable passions, in a mind not diseased or unsound, he would and ought to be punished for his acts.” In McWhorter's Case, 46 Iowa, 88, decided in 1877, the following charge had been requested in behalf of the prisoner : “If the jury believe from the evidence that, at the time of the commission of the alleged homicide, the defendant was laboring under a diseased condition of the mind, that he was insane on the subject of the manner in which the deceased (a physician) had treated his wife, and on the subject of deceased, with others, having formed a conspiracy to take his (defendant’s) life, then the jury should acquit the defendant.” This charge the *601trial court had refused to give. The Supreme Court, in reference to it said : “It will be at once observed that this instruction fails to present the condition, that the mental disease must have destroyed the power of defendant to comprehend, rationally, the nature and consequences of his act and overpowered his will, which must exist in order to render him free from accountability for his acts.” Felter’s case is cited in support of this principle. In the still later case, State v. Hockett, 30 N. W. 742, the Supreme Court of Iowa expressed the principle as follows : “On the trial of an indictment for murder, where insanity is pleaded, an instruction to the jury that “the alleged insanity and the alleged crime must be connected, the one with the other, and the latter be the offspring of the former, in order to have the effect of rightfully declaring one irresponsible for his acts,” is correct, where there is no evidence tending to show that the defendant was insane od all subjects, or was homicidally insane.”
The case of opps v. People, 31 Ill. 385, is the next case relied on. The opinion in that case was by Judge Breese. The alleged insanity was in the form of mental illusion, as to his wife’s infidelity to him. Speaking for the court, Judge Breese said : “We have come to the conclusion that a safe and reasonable test, in all such cases, would be, that whenever it shall 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 acquitted. But this unsoundness of mind, or affection of insanity, must be of such a degree as to create an uncontrollabe impulse todo the act charged, by overruling 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 chosing between them.” Let it be borne in mind that this summation of the principle was the utterance of a court ■which held that moral insanity precluded criminal accountability; and yet, to make the defense available, it was held necessary that the mental unsoundness should have so far progressed, as to “obliterate the sense of right and wrong as to the particular act done.”
That I am correct in my interpretation of the court’s decision, I refer to the ruling of the same court made in Dunn v. People., 109 Ill. 635 — decided in 1884. In that case the trial court had charged the jury, as follows : “If you believe from the evidence, beyond a reasonable doubt, that at the time of committing the alleged act the defendant was able
*602to distinguish right from wrong, then you can not acquit him on the ground of insanity.” Two other charges were given, embodying the same thought, but expressed more in detail. In the opinion of the court is this language : “ It is claimed that these instructions conflict' with the law as declared in Hopps v. People, 31 Ill. 385, and Chase v. People, 40 ib. 353. We do not so understand the instructions. In the Hopps case, in discussing the question of insanity it said,” etc. The court then proceeds to repeat that part of the opinion which I have copied above. It was added : “ If at the time the crime w'as committed the defendant knew that it was wrong to commit such a crime, and had the power of mind to choose either to do or not to do that act, and of controlling his conduct in accordance with such choice, then he ought to be held responsible, although he was not entirely and perfectly sane. . . Where a man knows that it is wrong to do a certain act, and possesses the power of mind to do or not to do that act, it would be a dangerous doctrine to hold that such person should not be held responsible, because he might not be regarded entirely and perfectly sane.”
The case of Bradley v. State, 31 Ind. 492, comes next in order. The opinion in that case, which was pronounced in 1869, shows that the writer had read considerably on the subject of mental disorders. Viewed from the standpoint that, like the cases we have cited, that opinion was delivered by a court which holds that moral insanity is a defense to a criminal charge, and that if a reasonable doubt of sanity is engendered, an acquittal must follow, there is nothing remarkable in that case, except that it expresses disapprobation of the simply right and wrong test.
In Walker v. State, 102 Ind. 502, decided in 1885, the Supreme Court of that State again considered the question of insanity as a defense for crime. The trial court had charged the jury that — “ only persons of sound mind inlaw can be convicted of crime.” . . When considered (insanity) in relation to crime, it is a general rule that persons who are in that relation which the law recognizes as of unsound mind, are not responsible criminally for their acts when in that condition. But it is also true that mere weakness of mind alone, or slight mental ailments which do not exclude that knowledge of right and wrong, and the power to act in accordance with the plain dictates of reason and justice, do not constitute unsoundness of mind in the law. . In cases of partial insanity, when the mind may be clouded and weakened, but not remembering, reasoning, and judging; or, so perverted by insane delusions as to act un*603der false impressions or influences. In these cases the rule is this : A man is not to be excused from responsibility if he has capacity and reason sufficient to enable him to distinguish between right and wrong as to the particular act he is then doing, (to have) a knowledge and consciousness that the act he is then doing is criminal and wrong, and will subject him to punishment. In order to be responsible, he must have sufficient power of memory to recollect the relations in which he stands to others, and in which others stand to him ; that the act he is doing is contrary to the plain dictates of justice and right, injurious to others and in violations of the dictates of duty. On the contrary, although he may be laboring under partial insanity, if lie still understands the nature and character of his act, and its consequences, if he has a knowledge that it is wrong and criminal, and a mental power sufficient to apply that knowledge to his own case, and to know that if he does the act he will do wrong and receive punishment, such partial insanity .is not sufficient to exempt him from responsibility for criminal acts. He is then not insane. The true test is this: Has the defendant in a criminal case the power, to distinguish right from wrong and the power to adhere to the right and avoid the wrong ? Has the defendant, in addition to this, the power to govern his mind, his body and his estate ? If he has these powers he must exercise them. He is then in law not a person of unsound mind, and the law will hold him answerable for his acts. But if his mind be so unsound that he has them not, then the law will excuse his act by reason of the unsoundness of his mind.”
Speaking of the ruling on these charges, and another not material to the inquiry before us, the revising court said, “ considered as a whole, . . it contains nothing materially injurious to the appellant.” '
The case of Harris v. State, 18 Tex. Ct. App. 287, presented the question of moral insanity — kleptomania—held a valid defense by that court. There was nothing decided material to the question we have in hand.
Smith v. Commonwealth, 1 Duv. 224, declares two propositions : First, that moral insanity is a defense to a prosecution for crime. The insanity relied on was, that the prisoner, when he perpetrated the "homicide, was drunk, and that “such a condition superinduced moral insanity.” The second proposition of the opinion was that a reasonable doubt of the prisoner’s sanity justified an acquittal. This case was decided in 1864.
In the later case of Kriel v. Commonwealth, 5 Bush 362, the defense of reasonable doubt of sanity was expressly held in*604sufficient. In the opinion is the following clause: “If there be mental or moral-insanity, however recent, to such an extent as to destroy free agency and moral responsibility, on being established by satisfactory evidence, this will excuse.” In the same opinion, after stating that drunkenness may be of such a character and to such a degree as to repel all idea of malice, and to reduce a homicide from murder to manslaughter, it is added : “ But as this state of mind is superinduced by the wrongful act of the pepetrator, a due regard for the interest of society and the personal security of every one, precludes it from being a satisfactory excuse, and an entire exemption from punishment. Indeed, if it appeared that intoxication excited the animal passions and aroused a destructive propensity in the accused, why should even drunkenness in such a case be considered a mitigating cause, any more than the unchaining a mad dog in the streets of a town, or the riding a vicious animal into a crowd, merely because the perpetrator had no particular malice at any one, or indeed expected death at all to ensue ; yet, if by reason thereof, any one should lose his life, this recklessness is set down as malice towards mankind in general, and the perpetrator criminally responsible in the highest degree ? ”
The case of Cunningham v. State, 56 Miss. 269, declares principles which I am unable fully to reconcile. It first allows a reasonable doubt of sanity, engendered by the evidence, to be a defense against a charge of crime, but declares that the burden of proving insanity is on the defendant. It next adopts the right and wrong theory, or capacity to perceive the difference between right and wrong as the test of insanity. It then adopts the rule declared by the judges in the McNaghten case as applicable to cases of mental delusion. The views of Justice Chalmers in the latter part of bis opinion rendered in this case, I re-produce entire. The court below had been requested to instruct the jury that “ there is no responsibilty for an act committed under the uncontrollable impulse resulting from mental disease.” On this clause of the charge, the court expresses itself as follows :
“ The second clause declares that there is no responsibility for ‘an act committed under the uncontrollable impulse resulting from mental disease.’ If the impulse meant is the direct result of such mental disease as destroys the perception of right and wrong, this is only a re-affirmation of the doctrine announced in several preceding charges, and it derives no additional strength from the prefix of the word ‘uncontrollable.’ But there is said to be an uncon*605trollable impulse springing from a mental condition quite different from this, — -a state of the mind which perfectly perceives the true relations of the party, and recognizes all the obligations thereby imposed, but which, is unable to control the will.
“ This character of insanity is variously styled moral, or emotional, or impulsive, or paroxysmal insanity. It is known among medical writers as lesion of the will. Its peculiarity is said to be that, while the mental perception is unimpaired, the mind is powerless to control the will; that while its unhappy subject knows the right, and desires to pursue it, some mysterious and uncontrollable impulse compels him to commit the wrong, This kind of insanity, if insanity it can be called, though sometimes recognized by respectable courts, and still ofteuer, perhaps, by juries seeking an excuse to evade the stern dictates of the law, is properly rejected by the authorities generally. The possibility of the existence of such a mental condition is too doubtful, the theory is too problematical, and too incapable of a practical solution, to afford a safe basis of legal adjudication. It may serve as a metaphysical or psychological problem, to interest and amuse the speculative philosopher, but it must be discarded bv the jurist and the law-giver in the practical affairs of life. To it may well be applied the language of Judge Curtis, who, in speaking of this and similar questions, says : ‘They are an important, as well as a deeply interesting study, and they find their place in that science which ministers to diseases of the mind. * * * But the law is not a medical nor a metaphysical science. Its search is after those practical rules which may be administered without inhumanity, for the security of civil society by protecting it from crime. And therefore it inquires, not into the peculiar constitution of mind of the accused, or what weakness, or even disorders, he was afflicted with, but solely toheiher he. was capable of having, and, did have, a criminal intent. If he had, it punishes him ; if not, it holds him dispunishable.’ — United States v.McGehee, 1 Curt. 1.
“The latter clause of the instruction in question is copied — as, indeed, the whole instruction is, — from the syllabus, or head-notes, of The Commonwealth v. Rogers, 7 Metc. 500, but it fails to embody the qualification and restriction thrown around the doctrine in the opinion itself.”
“ The uncontrollable impulse, which the learned chief justice declares will excuse the act, is said to be that overwhelms reason, conscience, and judgment.’ ‘If so,’ says he, ‘then the act was not the act of a voluntary agent, but the involuntary act of the body, without the concurrence of the *606mind directing it.’ In other words, it is the uncontrollable act of a mind destitute of reason, conscience, or judgment as to the particular object, however sane as to other matters. The latter clause of the instruction, therefore, should have been restricted by words conveying the idea that the act was the direct result of an uncontrollable impulse, springing from mental disease, existing to so high a degree that for the time, it overwhelmed the reason, judgment, and conscience.”
In Com. v. Rogers, 7 Metc. 500 — a case tried before Shaw, C. *J. — the defense was rested on mental delusion. The sum of the instructions is contained in the following extract :
“ The questions, then, in the present case, will be these : 1. Was there such a delusion and hallucination? 2. Did •the accused act under a false but sincere belief that the warden had a design to shut him up, and, under that pretext, destroy his life; and did he take this means to prevent it ? 3. Are the facts of such a character, taken in connection with the opinions of the professional witnesses, as to induce the jury to believe that the accused had been laboring for several days under monomania, attended with delusion; and did this indicate such a diseased state of the mind, that the act of killing the warden was to be considered as an outbreak or paroxysm of disease, which for the time being overwhelmed and snperseded reason and judgment, so that the accused was not an accountable agent?”
“ If such was the case, the accused is entitled to an acquittal ; otherwise, as the evidence proves beyond all doubt the fact of killing, without provocation, by the use of a deadly weapon, and attended with circumstances of violence, cruelty, and barbarity, he must undoubtedly be convicted of wiíful murder.”
In the case of Dejarnette v. Com. 75 Va. 867, the principle declared is embodied in the following extract from the opinion : “In every case, although the accused may be laboring under partial insanity, if he still understands the nature and character of his act, and its consequences, and has a knowledge that it is wrong aud criminal, and a mental power sufficient to apply that knowledge to his own case, and to know that if he does the act he will do wrong and receive, punishment, and possesses withal a will sufficient to restrain the impulse that- may arise from a diseased mind, such partial insanitv is not sufficient to exempt him from responsibility to the law for his crimes.” This court recognized moral insanity as a defense.
So, in Pennsylvania, the court receives the defense of moral insanity as an answer to a criminal accusation. In *607Boswell’s case we commented on O. J. Gibson’s language, as used in Com. v. Hosier, 4 Barr 264, and disapproved it. In Coyle v. Com., 100 Penn. St. 573, decided in 1882, the trial court had repeated to the jury the language of C. J. Gibson, which we copied in Boswell’s case. This was urged as a ground of reversal in the Supreme Court. In reply, the court said :
“The able argument of counsel has failed to convince us that this was not a correct declaration of the law, or that it has since been ruled otherwise by this court. The validity of such a defense is admitted, but the existence of such a form of mania must not be assumed without satisfactory proof. Care must be taken not to confound it with acts of reckless frenzy. When interposed as a defense to the commission of a high crime, its existence should be clearly manifested. Such defense is based on an unsound state or condition of the mind, proved by acts and declarations of violence. It certainly is not requiring too much to hold that it shall be shown in more than a single instance. We know no later case in this State where the precise question has been ruled otherwise.” Nothing else is said in that case which is material to the subject I am considering, except that the court repudiates the right of acquittal, if the testimony simply raises a reasonable doubt of sanity. The insanity relied on in that case was homicidal mania; a so-called form of insanity which this court declines to recognize as a mental disease.
The Connecticut cases need but a passing notice. — State v. Johnson, 40 Conn. 136, presented the defense of dipsomania. • In that case they not only permitted the defense of moral insanity, but, when insanity was the defense, the State was at that time required to prove sanity beyond a reasonable doubt. A discussion of the questions there considered would present no new features.
The case of Anderson v. State, 43 Conn. 514, scarcely raises a question material to the line of thought I am pursuing. The majority of the revising court — -three to two— granted petitioner a- new trial, rather against legal rules, because in their judgment he had not had his case fully and sufficiently represented in the court below. The profession, on reading it, would not esteem it a safe or valuable piece-dent.
In the later case of State v. Hoyt, 46 Conn. 330, that court qualified its rulings by holding that proof of the insanity of a person accused of crime is a matter of defense wholly, and the burden of proving it rests on the accused.
The case of State v. Pike, 49 N. H. 399, was decided in *6081870. The defense relied on was dipsomania — an inordinate craving of alcoholic stimulants. The defendant was convicted of murder in the first degree. The chief questions discussed on error arose on the refusal of the court to give the following instruction to the jury :
“The defendant requested the court to instruct the jury that the sanity — the mental capacity of the defendant to commit any crime charged in the indictment — is a fact to be proved by the State beyond all reasonable doubt; that there is no legal presumption of sanity, which can have any weight with the jury as a matter of law; that there is no legal presumption of sanity which is a substitute for evidence, or which, as a matter of law, affects the burden of proof in criminal cases.”
An offer had been made, in the court below, to prove, by non-expert witnesses, their naked opinion that the accused was insane when he committed the homicide. This testimony had been rejected, and it was claimed that in this ruling there was error.
The majority opinion of the court was delivered by Smith, J., affirming the judgment, in which all the justices, except Justice Doe, appear to have concurred. Then follows a most elaborate opinion by Justice Doe, which I can but regard as a dissenting opinion, although not so expressed in the book. It covers thirty-six pages, discloses much thought, reading, and research, and is expressed in a bright, incisive, combative style. He first devoted many pages to prove that all witnesses- — -non-experts as well as experts— should be allowed alike to testify to their opinions of a prisoner’s insanity. In this he opposed the views of his brother justices, and he stands opposed to our uniform rulings, which I need not cite. He also declared, in terms, that “There was error in the refusal of the court to instruct the jury that there is no legal presumption of sanity; and also in the instruction that every person of mature age is presumed to be sane until there is evidence tending to show insanity.” In this he also stood opposed to his brother judges. He did more. He antagonized every authority I have ever seen or heard of on the subject.. And, as I understand his position, he took the ground that there are no legal tests on the subject of sanity or insanity; that the judges can give no directions for determining such issue, and that it is solely and purely a question of fact, to be determined by the jury, on the sworn testimony before them : The presiding judge must give no instructions or directions as to the constituents or classifications of mental disorders, nor as to the dividing line which separates ac*609countable sanity from irresponsible insanity : To allow him to do so, would be to receive unsworn testimony from a non-expert witness. The result of this is that the judge must sit quietly by in his supposed ignorance, as a silent looker on, while the forensic battle is waged between opposing counsel, with their expert, opinion testimony, before the jury, as the sole triers and arbiters of the facts. Who is to determine the pertinency of the evidence offered ? Not the presiding judge, for not knowing what constitutes insanity, he can not know what facts and circumstances tend to prove its existence. Can there be judicial administration without a presiding umpire to determine the disputes of opposing litigants ? As well put a locomotive engine in motion without an engineer, or launch a ship without a pilot or rudder.
The error of Judge Doe’s position, as I understand it, and, in fact, of the whole New Hampshire court, lies in the assumption that the question of sanity or insanity is one purely of fact. I admit it is largely so; but no question of judicial contestation can ever become solely a question of fact. Law pervades every human transaction, every question of status, every inquiry of right and wrong, as vital force pervades every fibre, every corpuscle of the living animal. The legal element may be agreed between the contestants, and hence may not be visible. Still it is there, and defines and determines what the issue is, and how the suit is to be maintained or defeated. (
It is my opinion that the inquiry of insanity, like most others in judicial administration, is a mixed question of law and fact. Of law, as to the extent and measure of mental disorder, which absolves from legal accountability. Of law, necessarily, in determining the pertinency of testimony offered in proof or disproof of the alleged mental disorder. Like most, if not all other courts, whose utterances on these questions have fallen under my observation, this court stands unmistakably committed to this doctrine. Hence, we have held that what is called emotional, or moral insanity is not a disease of the intellect, but sheer depravity — a surrender of the higher teachings of conscience, to baser and debased passions, instincts, and appetites. This we hold, the intellectual faculties remaining sound, is no defense to a criminal accusation. Hence we have held (and I understand my brothers as asserting it in this case), that to excuse conduct otherwise criminal, on the plea of insanity, the mind proper, as distinguished from the emotions, must be diseased, and the act charged must have been connected with that disease, as effect with cause. Hence we have held, and so decide in this case, that on the *610trial of such issue in the primary court, the presiding judge is within proper bounds, when he determines what testimony is, and what is not pertinent to the issue.
It will have been observed that the cases I have collated and considered were decisions made by courts which hold that moral insanity is a defense to a criminal prosecution. I think this fact should be considered in weighing their value as authority. The phrases, “ sudden impulse,” and “ overpowering or subverting the will,” are frequently encountered in the opinions delivered in those cases. Impulse is emotional rather than intellectual. It is a sudden emotional influence brought to bear on the will as an intellectual faculty, and, as a rule, not the offspring of the reasoning faculties. It is rather the antithesis of a formed judgment. It differs from the cognitive, or knowing faculty, and not infrequently so dominates the latter, as to acquire, for the time, the mastery of the will. The will, the executive faculty of the mind, can not, with propriety, be said to be subverted. To be subverted or overturned is to cease to have purpose — to cease to act; for without the function of the will, there can be no physical action. The will retains all its power, but, for the time, ceases to act in harmony with the knowledge-possessing faculty. It is perverted, but not subverted. I am speaking in common parlance, and employing language in its popular sense. When the will is perverted by a disease of the brain, or intellectual faculties, then any act caused thereby is blameless in the sight of the law. On the other hand, if there be no disease of the intellectual faculties, and the act done, though by a very perverted will, is nevertheless the offspring of moral depravity, debauched appetite, blunted sense of right, or other kindred prompting of a wicked heart, then for such an.act there is a moral and legal accountability in the amplest sense of those terms. The murderer, the assassin, the burglar, the incendiary, can truthfully plead that their wills have ceased to be the executors of their intellectual promptings. Criminal passion or appetite has obtained mastery over their higher and purer intellectual endowments, and perverted their wills to its baser uses.
I have indulged in these reflections, because I think the expressions “ sudden impulse,” and “ subversion of the will,” are inaccurate and misleading; at least, under our jurisprudence.
^Keeping myself reasonably abreast with advanced thought, and with the later and better understanding of mental disorders, I am willing to disclaim, as untenable, one of the tests of legal accountability declared by the *611judges in the McNaughten case. That was a case of partial insanity, called “ mental delusion.” There can be no difference, in a legal point of view, between delusion, illusion, and hallucination. In that case it was said that the delusion would be a defense, only when the supposed facts if real, would have justified the act done. This rule is too exacting. At the head of this opinion I have presented my views of the questions discussed in the form of syllabi. (
In the present case the wife and daughter were tried and convicted of the murder of the husband and father. The homicide was perpetrated with a gun, in the hands of the daughter, at the alleged instigation of the wife. The defense interposed for the daughter was idiocy. The wife’s defense was insanity, in the form of mental delusion. The delusion or hallucination, was, her alleged belief in a supernatural power and influence the husband had and exercised over her, by which he could bring sickness and even death upon her. That by the exeicise of this power he had brought on her protracted sickness, and she feared and believed he .would ultimately destroy her life. Of course, this fear and belief could only be gathered from her own conduct and expressions of belief and fear.
If this delusion proceeded from mental disorder, or defective mental organism, it is questionable if the case does not fall directly within the rule declared in the McNaghten case. If the wife believed her husband possessed supernatural power over her by which through unseen influences, he could bring upon her disease, and even death ; that he had exerted that power, and caused her to be sick for a great length of time, and, she believed, intended ultimately to take her life, in what manner could she rid herself of such impending peril ? She could not flee away from it if she would; for the power being supernatural, it could pursue her whithersoever she fled. Supposing her delusion to be a fact, how could she save her own life, by any preventive measures short of taking his ?
Was her alleged delusion insanity ? Was it, if it existed, a disease of the reasoning faculty ? What say psychological experts on this subject ? It is believed that the delusion claimed for her is a very common superstition with the grossly ignorant, particularly among the colored population. Less than three centuries ago the whole Engish-speaking people labored under this delusion, or superstition, and called it witchcraft. So firmly did they believe it, that they made the practice of it a capital felony. Many unfortunates to whom this dark art was imputed, paid the penalty by the most torturing of all known methods of inflicting tlie death *612sentence. Were our ancestors, from the King on his throne to the laboring peasant, all insane ? Even the great and good Sir Matthew Hale was a believer in witchcraft. He said, “That there were such creatures as witches he made no doubt at all; for, first, the Scriptures had affirmed so much. Secondly, the wisdom of all nations had provided laws against such persons, which is an argument of their confidence of such crime.”
On the other hand, if the great, the noble, and the learned, two or three centuries ago, slaughtered men and women indiscriminately as the imputed possessors of this demoniacal power, and under all the forms of law and for the public welfare, is it right to make an example of one ignorant, superstitious woman, if- she destroyed one life as the only means, to her benighted vision, of saving her own? Of course this is stated on the hypothesis that she really believed her husband possessed, and was exercising this dangerous power.
Let us pursue this line of thought a little further. In the world are very many religious faiths, each, perhaps, asserting a divine or supernatural inspiration. Take three of the most prominent, the Christian, the Mohammedan and the Buddhist; each numbering its adherents by the hundred millions. With each of these faiths the professions of the other two are mere superstitions or hallucinations. Are the invocations to Allah and to the “ Elightened One” any more an illusion to our comprehension than Christian worship is to theirs ? Our faith, we maintain, is founded alike on Divine revelation and the inherent evidences of its purity and truth. Is their mental delusion a species of partial insanity? And if in the zeal of the religion of Mohammed, propagation by the sword is believed to be a duty, is such act to be excused on the score of mental illusion ? What of the believers in spiritualistic materializations, mind-reading, and, the many other isms which live their brief day, and are not without a following. Are the believers in such supernatural power mentally diseased ? Such enquiries may be amusing, if not interesting, to the visionary and speculative. They can only bewilder when applied to the actual transactions of business life. Judicial administration is too real to enter upon such doubtful and dangerous speculations. In the language of Judge Curtis, “ It searches after those practical rules which may be administered without inhumanity, for the security of civil society by protecting it from crime. It inquires not into the peculiar constitution of mind of the accused, or what weakness, or even disorders he was afflicted with, but solely whether *613he was capable of having, and did have a criminal intent.” I hold we should take our steps cautiously, in adopting the theories of psychological enthusiasts, lest we disarm retributive justice of all its restraining energy.
^This is a dissenting opinion, and I wish to be understood as intimating no opinion, either one way or the other, on the sufficiency or insufficiency of the asserted insanity, relied on in this case. It being, under the opinion of my brothers, a question of fact for the jury, I will leave it to. them, without any attempt to bias them by anything I may say.
I regret the necessity I have felt resting on me of differing with my brothers in this case. I regret what I conceived to be a duty to express my views so much at length. On a question of less importance I would not have done so. I have feared, however, and still fear, that the effect of their ruling will be to let in many of the evils which result from allowing the defense of emotional insanity. I acquit them of all intention to alter the rule of this court on that subject. Still,[I think the line can not be too clearly and sharply drawn, which separates the pitiable, unfortunate victims of diseased mental faculties, from the recklessly depraved, whose chief evidence of insanity is found in the causeless atrocity of their crimes. Human life has become all too cheap ; and while we spread the mantle of mercy over the criminally irresponsible, the lawless should be made to feel that the way of the transgressor is hard. The terror of the law may thus become a minister of peace.