(dissenting)—I respectfully dissent from the majority opinion insofar as it approves instruction No. 10 which limits the right and wrong test for the defense of insanity to "knowledge of a person at the time of committing an act that he was acting contrary to the law."
My understanding of the test as conceived by the majority is that a trier of fact may not acquit a defendant by reason of insanity if the defendant knows right from wrong either in a moral or in a legal sense. By so limiting the insanity defense I fear that it is reducing to an arid formality a substantive defense. Despite the heinousness of the crime committed, we as a civilized society will exculpate from legal responsibility one found to be insane. To whatever extent we err, as we most certainly will in so arcane an inquiry as into a defendant's sanity, we must err in the direction of maintaining insanity as a viable defense, for it is a much greater injustice to send an insane person to the penitentiary than to send a criminal to an asylum.
The new test promulgated by the majority brings to bear a defendant's knowledge of the law on his culpability. If we are going to adhere to the maxim "ignorantia legis neminem excusat," State v. Boyett, 32 N.C. 336, 343 (1849), how can we allow knowledge of the law to imply sanity and thereby be inculpatory? Cf. Blumenthal v. United States, 88 F.2d 522, 530 (8th Cir. 1937).
My view of the proper interpretation of M'Naghten's Case, 8 Eng. Rep. 718 (1843), was expressed by Justice Cardozo in People v. Schmidt, 216 N.Y. 324, 333-34, 110 *342N.E. 945, 947 (1915), when speaking for the New York Court of Appeals, he stated:
The judges [in answering questions two and three in M'Naghten's Case] expressly held that a defendant who knew nothing of the law would none the less be responsible if he knew that the act was wrong, by which, therefore, they must have meant, if he knew that it was morally wrong. Whether he would also be responsible if he knew that it was against the law, but did not know it to be morally wrong, is a question that was not considered. In most cases, of course, knowledge that an act is illegal will justify the inference of knowledge that it is wrong. But none the less it is the knowledge of wrong, conceived of as moral wrong, that seems to have been established by that decision as the controlling test. That must certainly have been the test under the older law when the capacity to distinguish between right and wrong imported a capacity to distinguish between good and evil as abstract qualities. There is nothing to justify the belief that the words right and wrong, when they became limited by M'Naghten's case to the right and wrong of the particular act, cast off their meaning as terms of morals, and became terms of pure legality.
The New York court goes on to reconcile the apparent conflict between the first question of M'Naghten's Case and the second and third by pointing out that
[t]he answer to the first question, though it seems to make the knowledge of the law a test, presupposes the offender's capacity to understand that violation of the law is wrong. ... A delusion that some supposed grievance or injury will be redressed, or some public benefit attained, has no such effect in obscuring moral distinctions as a delusion that God himself has issued a command. The one delusion is consistent with knowledge that the act is a moral wrong, the other is not.
People v. Schmidt, 216 N.Y. at 335, 110 N.E. at 948.
Further, I believe our Supreme Court has adopted the moral rather than the legal definition. As pointed out by Professor Arval Morris, the Supreme Court expressly approved a jury instruction providing that the accused was legally insane if his mind was diseased to such an extent *343that he was "unable to perceive the moral qualities of the act with which he is charged and was unable to tell right from wrong with reference to the particular act charged." (Italics mine.) State v. Davis, 6 Wn.2d 696, 708, 108 P.2d 641 (1940), quoted in Morris, Criminal Insanity, 43 Wash. L. Rev. 583, 603 (1968). The same language italicized above was subsequently approved in State v. White, 60 Wn.2d 551, 374 P.2d 942 (1962); State v. Tyler, 77 Wn.2d 726, 466 P.2d 120 (1970); State v. Reece, 79 Wn.2d 453, 486 P.2d 1088 (1971); and State v. Quinlivan, 81 Wn.2d 124, 499 P.2d 1268 (1972). While the Davis instruction is no longer appropriate by virtue of the enactment of RCW 9A.12.010, I think that neither statutory nor case law changes vitiate the clear implication that the Supreme Court understands "right and wrong" in the insanity test to mean moral right and wrong.
The concept of right and wrong must be an objective standard of right and wrong. The Arizona Supreme Court upheld in State v. Corley, 108 Ariz. 240, 242-43, 495 P.2d 470, 472-73 (1972), the following instruction:
"Knowledge that the act was wrong, as the phrase is used in these instructions, means knowledge that the act was wrong according to generally accepted moral standards of the community and not the defendant's own individual moral standards. Knowledge that an act is forbidden by law will permit the inference of knowledge that the act is wrong according to generally accepted moral standards of the community."
I am not troubled by the majority's suggestion that according to this formulation one who knew his acts were unlawful could still be found insane, and thereby exculpated. As pointed out above, if we are to be consistent in our application of the maxim that ignorance of the law excuses no man, then a person's knowledge of the law must be immaterial to culpability. The fact that the law is, for the most part, an expression of the collective morality justifies the permissive inference that a defendant knows an act is immoral from his knowledge that it is unlawful. *344Whether such an inference is to be drawn, however, should be left to the jury. In limiting the definition of right and wrong to the legal sense the court imposed on the jury a mandatory inference that the defendant was not insane, thereby directing a verdict.
I would remand for new trial.6
Reconsideration denied October 29, 1980.
Review granted by Supreme Court February 13, 1981.
I would frame the instruction in the words of WPIC 20.01 without further definition of right and wrong. The drafters of WPIC must have been aware of the issue discussed here and concluded that without further elucidation the jury would be in better position realistically to determine the question of a defendant's sanity.