dissenting.
I respectfully dissent.
In my view, the trial court committed reversible error in failing to instruct the jury on “settled insanity” consistent with the instruction tendered by defendant at the sanity trial.
In 1847, Lord Hale at 1 Pleas of the Crown CH IV reiterated what was even then, and is certainly now, a well accepted view of the law of insanity. Lord Hale stated that insanity produced only by an ingestion of alcohol near or at the time of the offense was not a defense to a criminal act, whereas insanity resulting from a long-term use of alcohol was a defense.
Most jurisdictions recognize the distinction between insanity caused by an ingestion of alcohol or drugs close to the time of the offense and that resulting from a long-term and remote use of drugs or alcohol. In the former situation, insanity is not available as a defense to the crime, whereas in the latter situation, it is. See Martin v. State, 100 Ark. 189, 139 S.W. 1122 (1911); People v. Kelly, 10 Cal.3d 565, 111 Cal.Rptr. 171, 516 P.2d 875 (1973); Griffin v. State, 96 So.2d 424 (Fla.App. 1957); State v. Freitas, 62 Hawaii 17, 608 P.2d 408 (1980); State v. Clokey, 83 Idaho 322, 364 P.2d 159 (1961); People v. Free, 94 Ill.2d 378, 69 Ill.Dec. 1, 447 N.E.2d 218 (1983); Parker v. State, 7 Md.App. 167, 254 A.2d 381 (1969); Commonwealth v. Ricard, 355 Mass. 509, 246 N.E.2d 433 (1969); People v. Cahill, 320 N.Y.S.2d 487, 36 A.D.2d 746 (N.Y.App.Div.1971); State v. Wilson, 104 N.C. 868, 10 S.E. 315 (1889); Rucker v. State, 119 Ohio St. 189, 162 N.E. 802 (1928); Couch v. State, 375 P.2d 978 (Okla.Crim.1962); Evilsizer v. State, 487 S.W.2d 113 (Tex.Crim.App.1972); Arey v. Peyton, 209 Va. 370, 164 S.E.2d 691 (1968); State v. Rio, 38 Wash.2d 446, 230 P.2d 308 (1951); State v. Woods, 169 W.Va. 767, 289 S.E.2d 500 (1982).
Despite the long history and substantial case authority in support of this rule, the dispositional opinion here rejects the distinction between insanity resulting only from the recent ingestion of alcohol or drugs and insanity which results from an earlier long-term use of alcohol or drugs. *549For several reasons, I believe this treatment of the issue to be mistaken.
In deciding the issue, the dispositional opinion primarily relies on Hendershott v. People, 653 P.2d 385 (Colo.1982); People v. Low, 732 P.2d 622 (Colo.1987); and People v. DelGuidice, 199 Colo. 41, 606 P.2d 840 (Colo.1979). However, neither in those cases or any other Colorado case was the issue of “settled” insanity resulting from a long-term earlier use of alcohol or drugs at issue.
People v. DelGuidice, supra, the earliest of the three cases relied on, involved a defendant attempting to use alcohol intoxication contemporaneous with the offense as a defense to his criminal charges. The primary issue was whether Colorado’s statutory prohibition against the use of contemporaneous intoxication as a defense in a criminal case violated the Due Process clauses of the United States and Colorado Constitutions. Although the conviction was affirmed, three members of our supreme court dissented on the basis that the legislative prohibition violated due process. I find those due process concerns important here.
Since the prosecution must prove each element of the offense beyond a reasonable doubt, see In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), there are significant constitutional issues raised whenever defendants are prohibited from pleading not guilty because they lacked the mens rea to commit the offense. For this reason, we should not readily expand the limitations on the criminal defenses beyond those clearly set out by statute and required by holdings of our supreme court.
The dispositional opinion here quotes extensively from Hendershott v. People, supra. However, the Hendershott majority determined that it would violate the Due Process clauses of the United States and Colorado Constitutions to prohibit a defense of brain injury which limited defendant’s mental capacity to form the necessary mens rea for the offense.
In that ruling, the Hendershott court contrasted the brain injury defense of the defendant with a person who was claiming an intoxication/insanity defense because of voluntary ingestion of alcohol. But, the defendant there did not claim that his brain injury resulted from either contemporaneous or long-term use of alcohol or drugs, and thus, the court’s discussion of alcoholism was not central to its decision. Moreover, there is no indication in Hendershott that the court’s discussion about voluntary intoxication included a prior long-term and settled use of drugs or alcohol.
In my view, the acceptance in Hendershott v. People, supra, of the concept that the defense of brain injury contrasted to intoxication from recent ingestion of alcohol or drugs must be permitted under the constitution supports the admissibility of the settled insanity defense here.
Implicit in the settled insanity defense is the notion that defendant’s brain has been altered by the long-term use of alcohol or drugs. See State v. Booth, 169 N.W.2d 869 (Iowa 1969); Parker v. State, supra. Such changes in the brain may make it organically different, or abnormal, on a long-term or settled basis. See, e.g., J. Rankin, Alcohol, Drugs and Brain Damage (S. Lamberd ed. 1975).
In contrast, a person who claims he lacks the requisite mens rea to commit the charged offense because of ingestion of alcohol or drugs at or near the time of the offense does not have an injury of the type recognized in Hendershott. Indeed, the immediate or proximate cause of the defendant’s actions in the settled insanity situation is more closely akin to the brain injury in Hendershott, rather than to the recently consumed alcohol situation in People v. DelGuidice, supra. See also State v. Booth, supra; Parker v. State, supra; People v. Free, supra.
The dispositional opinion also relies on the language in People v. Low, supra, that temporary insanity is not a defense to a crime in Colorado. Low involved the correctness of a trial court’s ruling that defendant was not guilty by reason of insanity because of his recent ingestion of numerous cough drops which contained the drug dextromethorphan hydrobromide. But, since the ingestion of the cough drops in *550Low was very close in time to the offenses, the settled insanity issue was not before the court.
In my view, the terms “temporary” and “permanent” insanity in the alcohol/drug context can be misleading. The courts have referred to the action of a defendant through the ingestion of these items as being “temporary insanity,” whereas the delayed reaction to a long-term prior use of alcohol is called “settled or permanent insanity.” Parker v. State, supra; People v. Kelly, supra.
Since the extent of the period of manifest insanity may be of equivalent length in either the “temporary" or “permanent” situation, the distinction depends on when the drugs or alcohol were ingested in time relationship to the criminal offense.
The court in Parker v. State, supra, discussed the difficult analytical problem the courts have had with the use of these terms. It stated:
Regardless of what test is applicable to determining insanity, the majority [of courts] distinguish between (1) the mental effect of voluntary intoxication which is the immediate result of a particular alcoholic bout; and (2) an alcoholic psychosis resulting from long continued habits of excessive drinking. The first does not excuse responsibility for a criminal act; the second may. In other words, if a person drinks intoxicating liquor and is sane both prior to drinking and after the influences of the intoxicant has worn off, but is insane by the applicable test while under the influence of the intoxicant, he comes under the first category. If he is insane whether or not he is directly under the influence of an intoxicant, even though that insanity was caused by voluntary drinking, he comes under the second category. The cases usually refer to the first category as a ‘temporary’ insanity and the second category as a ‘permanent,’ ‘fixed’ or ‘settled’ insanity. These terms may be an over simplification. What ‘permanent,’ ‘fixed,’ or ‘settled’ means within the frame of reference is that the insanity not only existed while a person was under the influence of intoxicating spirits as an immediate result of imbibing, but existed independent of such influence, even though the insanity was caused by past imbibing. So if a person while in the throes of delirium tremens which may meet the test for insanity, commits a crime, he is not responsible for his criminal conduct, although such defect, resulting remotely from excessive drinking is only a temporary toxic state. It would seem that the distinction, notwithstanding the language of the cases, is not so much between temporary and permanent insanity as it is one between the direct results of drinking, which are voluntarily sought after, and its remote and undesired consequences. (emphasis added)
Moreover, the fact that settled insanity typically arises a significant time after the use of the alcohol or drugs suggests that the damage or alteration of the brain may be settled or permanent.
Furthermore, there is no requirement under Colorado’s statutory insanity law that a person’s insanity be permanent and not temporary. Since that which is not permanent by definition is temporary, a view that temporary insanity is not a cognizable defense is wrong. See People v. Kelly, supra.
Today, primarily through medication, modern medicine can alleviate the more severe and acute manifestations of many types of mental illness so that a person’s inability to tell right from wrong is very often not permanent. Furthermore, one reason that criminal defendants who are acquitted of a crime because of insanity are sent to the state hospital is to receive treatment so that they may become sane and may no longer be a danger to themselves or others and thus can be returned to society-
Since the inception of the English common law system of criminal justice, insanity has been recognized as a defense to crimes. R. Perkins, Criminal Law (2d ed 1969). Underlying this view is the concept that a certain level of moral and rational thought is necessary to hold a person criminally responsible for a crime. Criminal law *551has as a bedrock principle the notion that people who act criminally are responsible because they have the ability to act differently. See Ryan v. People, 60 Colo. 425, 153 P. 756 (1916).
Although the validity of this assumption is severely tested in many contexts, certainly if a person is found insane because of long-term impact on his brain from previous long-term alcohol or drug use, he should not be held criminally responsible. The legitimacy and morality of our criminal and justice system depends on the ability of a defendant to understand the nature of his actions and to conform them properly. See Ryan v. People, supra. For these reasons, I disagree with the dispositional opinion in its analysis of the “settled insanity” issue.
The concurring opinion suggests that, although settled insanity is a viable defense, a defendant is not entitled to an instruction which explicitly provides this legal concept to the jury as a basis for determining insanity. I reject this view that an explicit instruction on the issue is unnecessary. In my view, under the settled insanity doctrine, the long-term use of drugs or alcohol is a defense to a crime, and accordingly, a defendant is entitled to an instruction which accurately states this legal concept.
An instruction should be provided to give the jury the law as it relates to issues claimed to be true and which, if sustained by the evidence, warrant an acquittal. See Ellis v. People, 114 Colo. 334, 164 P.2d 733 (1945). Only by providing the jury with instructions which thoroughly state the law, can the court be assured that, in reaching its decision, the jury was not misled or otherwise failed to understand the issues. Ellis v. People, supra.
Furthermore, a defendant is entitled to a theory of the case instruction which states his defense to the charges. People v. Herbison, 761 P.2d 263 (Colo.App.1988).
Here, defendant’s defense was that prior long-term use of drugs caused insanity at the time of the incident, and if the jury believed this to be true, it was, in my view, a defense to the criminal charges. See People v. White, 632 P.2d 609 (Colo.App. 1981). Hence, an explicit instruction on the matter was required.
In deciding a case, the jury is required to apply the facts to the law. And, the trial court has a duty to properly instruct the jury on every issue presented. People v. Archuleta, 180 Colo. 156, 503 P.2d 346 (1972). Failure to do so may constitute plain error. Id. Ingrained in the law is the right of an accused to insist that the court instruct the jury on all legal questions in order to reach a true verdict. People v. Woods, 179 Colo. 441, 501 P.2d 117 (1972); People v. Alvarez, 187 Colo. 290, 530 P.2d 506 (1975). The instructions that were given here do not recognize the settled insanity defense and, thus, do not provide an adequate legal basis for defendant’s acquittal.
Such general principles are particularly pertinent here since the recent ingestion of alcohol or drugs is not a defense to a general intent crime in Colorado. Thus, the only means by which jurors can learn that there is a distinction for legal purposes between the contemporaneous use of drugs and previous long-term use of drugs is if they are informed of this distinction through a properly phrased jury instruction. See People v. Alexander, 663 P.2d 1024 (Colo.1983).
In summary, I disagree with the conclusion reached in the dispositional opinion that “settled insanity” is not an available defense to a criminal charge and I disagree with the concurring opinion that the absence of a specific instruction on “settled insanity” was without prejudicial impact. Hence, I would reverse the judgment of conviction and remand for new trial in which, under similar evidence, an appropriate instruction on “settled insanity” should be given.