ON PETITION FOR REHEARING
Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem. Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem. Before Schwab, Chief Judge, and Langtry, Foley, Fort,* Thornton and Tanzer, Judges. TANZEE, J.Our original opinion in this case reversed the judgment of conviction because the “prosecutor’s repeated reference to the ‘right-wrong’ test of criminal responsibility created confusion as to the proper standard to be applied by the jury and was therefore prejudicial to the defendant.” We granted the state’s petition for rehearing in banc and, having heard the issue reargued, we withdraw that portion of the opinion dealing with defendant’s third assignment of error and affirm the judgment of conviction.
Under OES 161.295 (1), the new test of criminal responsibility is in two parts:
“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 of his conduct or to conform his conduct to the requirements of law.”
Our original opinion concluded that the prosecu*257tor’s questions may have led the jury to confuse the new test with the old Oregon version of the M’Naghten rule and that the court should have instructed them not to apply the old rule. Upon reargument, the Public Defender argued additionally that the jury may have been confused because the second element of the new test, relating to defendant’s capacity to conform his conduct to the law, was not given equal emphasis to the first element requiring capacity to appreciate criminality. Upon reconsideration, we hold that this record does not justify a conclusion that the jury may have been confused in either respect.
The first element of the new standard of criminal responsibility is the functional equivalent of the former test in Oregon which was defined in State v. Gilmore, 242 Or 463, 468, 410 P2d 240 (1966):
“ ‘Insanity, to excuse a crime, must be such a disease !of the mind as dethrones reason and renders the person incapable of understanding the nature and quality and consequences of his act or of distinguishing between right and wrong in relation to such act. * * *’ ”
That language states in different words the first element of OES 161.295 (1), which excuses crime if “as a result of mental disease or defect [defendant] lacks substantial capacity * * * to appreciate the criminality of his conduct * *
The dissent disputes the equation of the old and new Oregon tests by pointing to Section A of the Commentary to the Proposed Criminal Code 34, § 36, which discusses the difference between the new rule and the M’Naghten rule. That difference is summarized by the substitution of the new word “appreciate” for M’Naghten’s word “know.” The significance iof the change is *258that the word “appreciate” allows psychiatric testimony regarding emotional as well as intellectual cognition of the criminality of the conduct.
The dissent ignores, however, a prior change in the law of Oregon which is acknowledged in Section C of the Commentary at 36 which compares the new law to the law of Oregon rather than to M’Naghten. Oregon long ago liberalized its version of the M’Naghten rule by substitution of the word “understand” for M’Naghten’s “know.” See, e.g., Gilmore, supra. The use of the phrase “right and wrong test” has been merely a shorthand reference, see State v. Layton, 174 Or 217, 226, 148 P2d 522 (1944), and State v. Wallace, 170 Or 60, 77-78, 131 P2d 222 (1942), and n¡ot a statement of the rule itself. The effect of the word'“understand” in the Gilmore formulation is to allow a full range of testimony as to emotional as well as intellectual cognition of the act, a practice which the drafters wished to continue by using “appreciate.” As they explained in the Commentary:
“It should be noted that this formulation [quoted above from Gilmore] is somewhat more liberal than the original M’Naghten rule. The Oregon test speaks of lack of capacity for ‘understanding’ the nature of the act. This would seem to allow a full examination of the mental condition of a defendant on not only the intellectual awareness of his acts but also the emotional awareness. The word ‘know’ in the psychiatric sense is understood to be not limited to intellectual awareness. Psychiatrists uniformly insist that it is possible for a person to ‘know’ intellectually what he is doing but not to ‘know’ it emotionally, and, if either of the two levels of ‘knowledge’ is missing, a person qualifies as insane under the. test. By using the word ‘understanding’ in the Oregon foryiulation this subtle, yet highly significant distinction of levels *259of knowledge seems to be incorporated. * * * Psychiatrists testifying at the trial * * * are, as a practical matter, able to testify as to both the intellectual and emotional awareness of the defendant. And the juries, in actual practice, then consider all such testimony.” (emphasis supplied)
"While we are hard put to articulate the difference between intellectual and emotional understanding or appreciation of criminality — and there is no need to enter that semantic thicket in this case — the definitions found in Gilmore and in OES 161.295 (1). each allow testimony as to both levels of cognition and the two definitions are therefore equivalent to each other in meaning and in function.
Professor George Platt, who served as reporter for the Criminal Law Eeview Commission on the responsibility section, verified this conclusion in his testimony to the Senate Committee on Criminal Law and Procedure, according to the minutes of their consideration of the new law, that:
“The text proposed in the Code is the Model Penal Code version and it is essentially the M’Naghten rule with respect to the actor’s knowledge of his acts but it is an extension of M’Naghten in that it does have a control test; it does go to the volitional aspect of any actor’s makeup.”
The only change in the cognition portion of the test is the requirement that the defendant’s capacity for appreciation only be “substantially” impaired. The purpose, again, is to assure a greater range of expert testimony than was permissible under the more absolute M’Naghten rule, Model Penal Code § 4.01 Comment (Tent. Draft No. 4,1956), but which was already the practice in Oregon under Gilmore.
The benefit of legislative purpose was fully ac*260corded to the defendant in this case. Dr. Voiss testified comprehensively and without restriction for a day and a half as to the defendant’s history and mental state. His testimony was not confined within hyper-technical legal boundaries — indeed he testified without objection that the defendant was “crazy as hell,” but there is no claim that such testimony comports with any rule of criminal responsibility, old or new.
The language employed by the prosecutor in questioning the non-psychiatric witnesses was as relevant under the new standards of criminal responsibility as it would have been under the old. The Commentary to the Proposed Criminal Code 36, § 36, recognizes that the word “know” is used by litigants in its broad sense as a means of eliciting generalized descriptions of a defendant’s condition, free from the relevancy constraints of overly technical legal definitions, allowing the jury to “make its own ‘common sense’ determination of the word’s meaning.” The phrasing chosen by the prosecutor in this case, “whether >or not he had the ability to distinguish right from wrong,” whether “he knew the difference between right and wrong,” whether he “suffers from a mental defect or disease rendering him unable to know the difference between right and wrong,” whether “this Defendant knew the difference between right and wrong,” and “whether or not Mr. Dyer is able to distinguish right from wrong,” were all relevant and proper under either the new or the old tests of criminal responsibility.
Similarly, the consistent answers by the prosecution’s witnesses that the defendant had the actual ability to distinguish between right and wrong at the time of the homicides were clearly relevant in deter-*261•miming under OES 161.295 (1) whether he had the substantial capacity to do so.
Because the first element of the new standard of criminal responsibility is the functional equivalent of Oregon’s former test, although stated in different language, there is no difference in that respect which could have confused the jury.
As to the second form of possible jury confusion, nowhere do we find that the prosecutor’s conduct was sueh as to indicate to the jury that the ability to appreciate criminality is the only test or even the primary test, so as to cause the jury to ignore or minimize defendant’s claim under the second element of the new test relating to his capacity to conform his conduct to the law.
The original opinion sets out the testimony of four state’s witnesses, each of whom expressed an opinion that defendant knew right from wrong at the time of the killings. In the case of three of those four non-psychiatric witnesses, the very following question dealt with the second element of the test and they each expressed an opinion that defendant could have obeyed the law had he chosen to do so.①
*262The state also offered the psychiatric evidence of Dr. George Suckow who testified extensively, indeed for 127 pages of transcript, as to the defendant’s condition relating to both elements of the test for criminal responsibility. Dr. Suckow took pains to specify that his testimony was given in light of the new rules' of criminal responsibility:
“Q. With reference to the defendant in this case, based on your past contact with him and the records available to you from the Oregon State Hospital as well as from other sources, were you asked to conduct an examination of the Defendant for the purpose of determining Ms mental responsibility?
“A. Yes, I was.
“Q. And specifically were you requested to conduct an examination for the purpose of determimng whether or not he had the ability to — whether or not his ability to appreciate the' criminality of Ms actions was substantially impaired due to mental disease or defect?
“A. Yes, I was.
“Q. And were you also by the same token to examine the Defendant to determine whether or not Ms capacity to conform his conduct to the law was substantially impaired? . : ‘
“A. Yes.
*263“Q. And did you reach an opinion based on your examination and also on your past contact with the Defendant?
“A. Yes, I did.
“Q. What is your opinion?
“A. It’s my opinion that he does not have any mental disease or defect that substantially impairs bis ability to appreciate the potential criminality of his conduct or to conform his conduct to the requirements of law. In other words, he is essentially responsible and capable of behaving if he chooses to.
>x< # #
“Q. [by defense counsel] And do you understand the test in Oregon to be the rightfulness and wrongfulness of his conduct?
“A. No, that used to be the test under the M’Naghten Buie, but it changed in January of 1972. Nov/ it’s substantial capacity to appreciate the criminality of his conduct, although I personally like to say potential criminality.”
Upon argument, defense counsel raised the subject of criminal responsibility by telling the jury:
“Your difficulty, however, it seems to me then becomes apparent in the fact that you must focus your attention on the question first: Was the Defendant criminally responsible at the time of these acts? Now, this question has a two-part aspect to it. First, you have to ask yourselves: Was he suffering from a mental disease or defect to the extent that he lacked the substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law? # # SO?
The prosecutor, in his turn, dealt with both issues of criminal responsibility with clarity and balance throughout his argument to the jury. We do not find, *264as does our dissenting brother, a “stress” on “ ‘right-wrong.’ ” For example, the prosecutor argued:
“Now, this matter of whether or not the Defendant is diagnosed as a psychotic is not an empty exercise in the context of what we’re talking about here. * # * But the question is in determining whether or not the individual is out of touch with reality to the extent that he cannot conform his conduct to the law and to the extent that he cannot appreciate that what he is doing is criminal.
In arguing the testimony of the witnesses, the prosecutor commented upon the report of Dr. Dewey:
“* * * [I]t does not contain an opinion that this man was unable to appreciate the criminality of his conduct or unable to conform Ms conduct to the requirements of the law.”
Of another witness, he argued that:
“Gail Melson testified as to her opinion about this Defendant’s ability to conform his conduct and to appreciate right from wrong * *
Regarding Mrs. Miller, he argued:
“* * * But her opinion was that tliis Defendant knew right from wrong and could obey the law if he wanted to. * * *”
Regarding Dr. Ragan, who had treated the defendant, the prosecutor argued:
“* * * [H]is testimony was that Phil [the defendant] knew right from wrong and that Phil could conform Ms conduct to the law. * # *”
Tn referring to a comment by the defendant after the homicides that “[w]hen I do sometMng, I really do it ■big. I got me a cop too,” the prosecutor argued:
“* * # Is that the statement of a man that *265doesn’t remember? Is that the statement of a man that doesn’t ¡mow the criminality of Ms conduct? Is that the statement of a man who cannot conform, or is that the statement of an anti-social personality, a flat, plain criminal like so many others who is prond of killing a policeman?”
Following argument, the court instructed the jury as to both aspects of criminal responsibility in the words of the statute.
We see no possibility that the prosecutor’s conduct or any other factor in the trial of this case would have confused the jury Mto relying upon obsolete law nor solely upon the cognition element of the new rule of criminal responsibility and ignoring the volition element. For these reasons the portion of our original opinion dealing with the third assignment of error is withdrawn, those portions dealing with change of venue and competency of lay witnesses stand unchanged, and the judgment of conviction is affirmed.
Former opinion partially withdrawn; judgment of conviction affirmed.
In questioning Mrs. Melson, the next question and answer succeeding that set out in the original opinion was:
“Q. Did you feel that he had the ability to obey the law?
“A. Yes.”
The next succeeding question and answer in Mrs. Miller’s testimony was as follows:
“Q. Do you think that the Defendant had the ability to obey the law when he wanted to?
“A. Well, I think he could if he wanted to, yes, because he had been doing it.”
Immediately following the first pair of questions and answers of *262Dr. Ragan which are set out in the original opinion, is the following :
“Q. And with specific reference to whether or not the Defendant suffered from mental disease or defect that would substantially impair his ability to conform to the law, do you have an opinion on that?
“A. With my contact with him, I felt he was .able to conform to the established law.”
The redirect testimony of Dr. Ragan, as set out in the original opinion, refers to both of the twin tests.