dissenting.
A close study of the language of ORS 161.295® plus the Commentary to the new Oregon Criminal Code of 1971 will show that contrary to the conclusion of the majority opinion, the first element of the new standard for determining criminal responsibility is not the “functional equivalent” of the former test in Oregon.
The Commentary shows that the Criminal Law Revision Commission, at the urging of the various experts in the field of criminal insanity, decided to recommend the abandonment of the old test, wMch was a modified version of M’Naghten, and in its stead *266to recommend the adoption of a new and different standard. It seems to me that the majority opinion has all but nullified the first part (identified as “[a]” in the quoted section①) of the new test for determining insanity enacted by the 1971 legislature, and, in effect, has returned us to the former test. I would adhere to our former opinion in this case, State v. Dyer, 16 Or App 247, 514 P2d 363 (1973).
As the Commentary specifically points out, under the new law the determination of criminal insanity (irresponsibility) is no longer dealt with in terms of absolutes. In State v. Gilmore, 242 Or 463, 410 P2d 240 (1966), the Supreme Court set forth our prior test in terms of absolutes — whether the defendant did or did not know the difference between right and wrong (former OES 136.410). OES 161.295 (1) does not require this absolute knowledge. Instead the determination of responsibility commences with a two-part inquiry: (1) Did the defendant have intellectual awareness of the potential criminality of his conduct and (2) if so, did the defendant have emotional awareness of the potential criminality thereof?
The following are some of the statements in the Commentary:
“The draft section substitutes ‘appreciate’ for M’Naghten’s ‘know,’ thereby indicating a preference *267for the view that an offender must be emotionally as well as intellectually aware of the significance of his conduct * * *.
“In addition the section requires only ‘substantial’ incapacity, thereby eliminating the occasional references in some of the older cases to ‘complete’ or ‘total’ destruction of the normal cognitive capacity of the defendant.
* * & #
“* ® * 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 * * (At 34,36.)
The new test is highly sophisticated and not an easy concept to grasp. This is so because, as I have just pointed out, it is based on unfamiliar, technical psychiatric terms. This is why expert psychiatric testimony is sought and is so essential. See, Minutes of Criminal Law Revision Commission, January 18, 1969, p 2.
The psychiatrists who testified in this case did not agree in their opinions of Dyer’s sanity. Dr. Suckow testified that Dyer was able to appreciate the criminality of his act. Dr. Voiss, on the other hand, testified that Dyer could not, at the time he killed Ms wife, appreciate the criminality of such conduct. Dr. Voiss expressed the opinion that Dyer was under “a severe emotional disturbance or distress or pressure at that time beyond his control and relating to a pre-existing lifelong mental disease or defect.”
The questions soliciting lay opinions that Dyer knew right from wrong tended to contradict and confuse the expert testimony on the correct standard.
*268In summary, the net effect of the prosecutor’s questions concerning “right-wrong,” together with the stress the prosecutor placed on the answers in his closing argument, could only have the result of confusing a jury which had the responsibility of determining the ultimate question — did Dyer have “substantial capacity” “to appreciate” 'or “to conform” ?
The majority opinion disregards the clearly expressed intention of the Criminal Law Revision Commission to draft a substantially different test, and now concludes that all the legislature did was add a second part — “conform”—to the old “right-wrong” test. I cannot agree.
“(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 [a] to appreciate the criminality of his conduct or [b] to conform his conduct to the requirements of law.
“(2) As used in chapter 743, Oregon Laws 1971, the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.” ORS 161.295.