dissenting: I respectfully dissent. The majority opinion points out quite accurately that at this stage in the development of criminal law administration there are differing evaluations and views as to the social utility and desirability of the M’Naghten, the ALI, and the Durham tests or rules pertaining to the defense of insanity in the trial of criminal offenses. In my *212judgment the time has come to reject the outmoded M’Naghten test and to adopt the test proposed by the American Law Institute Model Penal Code. Since I am not in agreement with the majority, I deem it necessary to express the reasons for my position.
First, I think it would be helpful to state the question which is before the court for determination. The question is: What rule, consistent with personal responsibility and constitutional limitations, can, with justice, fairness, and concern for the public interest, be applied so that mentally ill persons are not found guilty of crimes which they did not at the time have the legal capacity to commit? Approximately ten years ago the Kansas Judicial Council was given the responsibility to draft a new criminal code for this state. Included in its overall task was the problem of defining “legal insanity” and of developing criteria to establish irresponsibility in criminal cases. In the April 1968 issue of the Kansas Judicial Council Bulletin, the council proposed the adoption of the ALI test or standard. In so doing, the council in its comment under the proposed statute discussed in depth the problem presented and set forth its reasons why the M’Naghten rule should be abolished and the ALI rule adopted. In this regard the council stated:
“The problem of defining the criteria of irresponsibility is one of the most difficult and controversial in the criminal law. A general lack of understanding of the conditions that produce irresponsibility as well as an apparent lack of sympathy and communication between the courts and law enforcement personnel on the one hand and the behavioral scientists on the other have contributed to the difficulty.
“Any system of criminal justice that holds the individual responsible for anti-social acts done in the exercise of free will must provide standards for excepting from responsibility those injurious acts done under circumstances which destroy or impair free will. Patently, the punishment of an offender whose act is a manifestation of insane frenzy is both unjust and futile. It is unjust because the offender had no ability to know or to conform to the norm. It is futile because it cannot possibly deter other similar acts. The idea of deterrence presupposes a rational individual, capable of weighing values and selecting among them. It follows that some criterion of irresponsibility is an essential of a system of penal law.
“Kansas presently has no statutory test of criminal responsibility, but follows the traditional M’Naghten rule which has been implemented by numerous judicial decisions. (See State v. Andrews, 187 Kan. 458). This test fixes responsibility on the accused when he knows the nature and quality of his act and knows that the act is wrong.
“Several possibilities confronted the drafters of this Code. (1) The subject may be wholly omitted from the statute, in which case the M’Naghten rule will stand. *213(2) The proposed statute may state the M’Naghten rule, thus seeking to give legislative reinforcement to the judicially developed standard. (3) The draft may provide a new and different test of criminal responsibility. Alternatives considered by the advisory committee were (a) the ‘irresistible impulse’ test, (b) the Durham or ‘product’ test, (c) the A.L.I. Model Penal Code test, and (d) the A.L.I. test as modified in the Currens case (U.S. v. Currens, 3 Cir., 290 F.2d 751).
“The committee has determined that the American Law Institute’s Model Penal Code test provides the best opportunity for reconciling the traditional concept of moral and legal accountability with contemporary scientific approaches to mental illness and deficiency. The language of the proposal is taken from the New York adaptation of the A.L.I. test. The following material in this comment is a rephrasing and adaptation of a portion of the New York Commission’s 1963 Interim Report (Appendix B, Report of New York Temporary Commission on Revision of the Penal Law), and is here set forth as an expression of the thinking of the Kansas Advisory Committee.
“Without attempting a full statement of the defects of the M’Naghten rule, we are agreed that an amendment should be drawn to overcome the following objections:
“(1) There is, first, the difficulty that inheres in the ordinary meaning of the word ‘know,’ as applied to persons suffering from serious mental illness. The fact that the defendant is able to verbalize the right answer to a question, to respond, for example, that murder or stealing is wrong, or the fact that he exhibited a sense of guilt as by concealment or by flight, is often taken as conclusive evidence that he knew the nature and the wrongfulness of his behavior. Yet one of the most striking facts about the abnormality of many psychotics is that their way of knowing is entirely different from that of the ordinary person. In psychiatric terms, their knowledge is usually divorced from all effect, which is to say that it is like the knowledge children have of propositions they can state but cannot understand; it has no depth and is divorced from comprehension. The present rule makes it very difficult to put this point before the jury, though it often is the crucial point involved. It seems clear that the knowledge that should be deemed material in testing responsibility is more than merely surface intellection; it is the appreciation sane men have of what it is that they are doing and of its legal and its moral quality.
“(2) The M’Naghten rule improperly confines the inquiry to the effect of mental illness or defect upon the actor’s cognitive capacity; the finding must be that he did not know the nature or wrongfulness of the act. The limitation is, as Judge Cardozo pointed out, faithful neither to the facts of mental life nor to the demands of legal, ethical or social policy.
“Mental illness, even in its extreme forms, may not destroy the minimal awareness called for by M’Naghten, while destroying power to employ such knowledge in determining behavior, the capacity that rational human beings have to guide their conduct in the light of knowledge. The point is a related one to that which we have made respecting the impairment of capacity to know. Capacity to know the nature and wrongfulness of conduct may not have been discernibly destroyed and yet the transformations in ability to cope with the external world, worked by severe psychosis, may have otherwise destroyed the individual’s capacity for self-control, in consequence of mental illness or defect, which from *214the point of view of morals and of legal policy warrants the special treatment of the irresponsible, the statute forces a discrimination which is neither logical nor just. We think that the discrimination should be rectified.
“(3) A final difficulty which we think demands attention turns on the degree of the impairment of capacity to know or to control that ought to be demanded before irresponsibility may be acknowledged. Taken on its face, the present rule calls for an impairment that is total; the actor must not know. This extreme conception poses what some have thought the largest problem in the just administration of the test.
“Even in the most extreme psychoses, there is often some residual capacity to know or to control; and, judging after the event, the psychiatric expert hardly can declare on oath that at the time of the disputed action the actor was totally bereft of knowledge or control. Yet this is a dilemma that it certainly is not deliberate legal policy to pose. In other situations, where the facts of life do not submit to any absolute appraisal, the law has been content to recognize that it must tolerate distinctions of degree. We think that such recognition is required here. People of relative sanity, on whom the threats of penal law can exert a deterrent force and who are within the range of influence of programs for correction, differ from the seriously deranged in the respect that theirs is an appreciable or substantial capacity to know and to control. We think a statute should be framed to recognize that this is so and to avoid a finding of responsibility for those psychotics who may have some remnant of capacity, however grossly it has been impaired by their illness.
“The changes that the proposed formulation would effect may be summarized as follows:
“1. With respect to the question which now is material under M’Naghten, the inquiry would be not merely whether the actor lacked knowledge of the nature and the wrongfulness of his behavior but also whether he was lacking in capacity to appreciate its wrongfulness. By adding the requirement of appreciation to that of knowledge, we would expect the courts to grant some leeway to an explication of the distinction between mere verbalization and a deeper comprehension, which we have discussed above. Moreover, since a person who is lacking in capacity to know or to appreciate the nature or the quality of his action, as those terms are understood in law, is necessarily incapable of an appreciation of its wrongfulness, we have thought it unnecessary to deal with the former possibility explicitly in statement of the principle.
“2. Instead of asking whether the defendant did not know we think the legal inquiry should be addressed to his capacity to know or to appreciate. The reason is that any testimony by the psychiatric expert, addressed to the actor’s mental state at the time in the past, will necessarily involve an inference upon his part from his judgment as to the actor’s powers or capacity. We think the law gains in clarity by making this explicit.
“3. The inquiry is not confined to the impairment of capacity to know or to appreciate the wrongfulness of the defendant’s conduct. For reasons stated earlier, it extends also to the capacity of the actor to conform his conduct to the requirements of the law.
“4. Finally, both in dealing with capacity to know or to appreciate and with capacity to conform, the question posed is not whether the actor wholly lacked the *215requisite capacity but whether he lacked substantial capacity — meaning thereby, the quantum of capacity that represents a fair appraisal of the wide range that in our culture excludes a diagnosis of severe mental illness or defect. The scope of that range is essentially a problem for the psychiatric sciences, to be reflected in the testimony of the expert witness, but sifted and evaluated by the court and jury in the light of common sense.
“We also propose a further paragraph as follows:
“(2) The terms ‘mental illness or defect’ do not include an abnormality manifested only by repeated criminal or anti-social conduct.
“The purpose of this paragraph is to exclude from the concept of ‘mental illness or defect’ and thus from the standard of irresponsibility so-called psychopathic or sociopathic personalities. These terms are employed by some psychiatrists to categorize persons who are insensitive to moral and social norms, as evidenced by their persistent and repeated conduct. Those psychiatrists who would regard such persons as the victims of illness proceed upon the theory that capacity for law-abiding living in society is a constituent of mental health, with the conclusion that its absence is illness; or else on the hypothesis that physical disorder underlies all maladjustment of this kind, although the present state of knowledge may not serve to explicate the nature of the psychical disorder except in terms of its results.” (pp. 35-38.)
The advisory committee of the Kansas Judicial Council which proposed the ALI standard consisted of some of the most distinguished lawyers and judges of this state. I consider their comments and rationale to be just as true and legally sound today as they were when their report was originally proposed in 1968.
The Kansas legislature, in considering the new proposed criminal code in 1969, decided to omit the proposed definition of insanity from the statutory provisions. I do not consider this as a legislative rejection of the ALI standard or as positive support for the M’Naghten standard. It seems to me more logically correct to say that the legislature determined that the question of a definition of “legal insanity” should be left for the determination of the supreme court, so that, in its wisdom, the court might select the most appropriate standard or criteria for “legal insanity.” In other words, the problem remains a judicial one, and it is for us to solve the problem.
In 1968 a great majority of the jurisdictions in this country followed the M’Naghten rule. Since that time, many states, either by statute or judicial decision, have rejected the M’Naghten rule and have adopted the ALI standard in some form. In January of this year the Supreme Court of Tennessee in Graham v. State, 547 S.W.2d 531 (Tenn. 1977), discarded the M’Naghten rule and adopted the ALI standard. I refer the reader to the excellent *216analysis of the subject in that opinion. Even more recently the United States Court of Military Appeals on July 25,1977, rejected the M’Naghten standard and adopted the ALI standard as a test of legal insanity to be applied in all criminal prosecution arising under the Uniform Code of Military Justice. (United States v. Frederick, 3 M.J. 230 [C.M.A. 1977].)
The standard has been adopted by all but one of the United States Courts of Appeal. (See United States v. Freeman, 357 F.2d 606 [2nd Cir. 1966]; United States v. Currens, 290 F.2d 751 [3rd Cir. 1961]; United States v. Chandler, 393 F.2d 920 [4th Cir. 1968]; Blake v. United States, 407 F.2d 908 [5th Cir. 1969]; United States v. Smith, 404 F.2d 720 [6th Cir. 1968]; United States v. Shapiro, 383 F.2d 680 [7th Cir. 1967]; Pope v. United States, 372 F.2d 710 [8th Cir. 1967]; Wade v. United States, 426 F.2d 64 [9th Cir. 1970]; Wion v. United States, 325 F.2d 420 [10th Cir. 1963], cert. den. 377 U.S. 946 [1964]; United States v. Brawner, 471 F.2d 969 [D.C. Cir. 1972].) The only federal circuit which has not adopted the ALI standard is the first circuit, which has not yet decided the issue. (Amador Beltran v. United States, 302 F.2d 48 [1st Cir. 1962].)
In the opinion of the court in this case the statement is made that a majority of the state jurisdictions today follow the M’Naghten rule. This statement is incorrect. A careful review of the statutes and cases in the various state jurisdictions has convinced me that the M’Naghten rule, which restricts legal insanity to the defendant’s capacity to know or appreciate the wrongfulness of his act, is accepted and followed today in only eighteen (18) states. Five (5) states have adopted a combined M’Naghten—irresistible impulse rule which permits the jury to consider not only the defendant’s capacity to know or appreciate the wrongfulness of his act, but also the defendant’s lack of capacity to control his actions or to resist the doing of the wrongful act. The Durham rule is applied only in the state of New Hampshire. The ALI standard has been adopted in some form in twenty-six (26) states.
The various statutes and court decisions do not follow any universal language. There is a wide difference in the phraseology used. What is important is the fact that the great majority of the jurisdictions have rejected the M’Naghten rule as the sole test of legal insanity. For purposes of analysis I have classified each of *217the fifty (50) states as to its present position with respect to the M’Naghten rule and have included the particular statute or court decision which supports the classification. The following states have adopted the pure M’Naghten rule which ignores any lack of capacity of the defendant to control his behavior:
1. Arizona: State v. Noble, 113 Ariz. 99, 546 P.2d 1130 (1976); Ariz. Rev. Stat. § 13-502 (Supp. 1977) (effective Oct. 1, 1978).
2. California: People v. Kelly, 10 C.3d 565, 516 P.2d 875, 111 Cal. Rptr. 171 (1973).
3. Florida: Anderson v. State, 276 So. 2d 17 (Fla. 1973).
4. Iowa: State v. Lass, 228 N.W.2d 758 (Iowa 1975).
5. Kansas: State v. Andrews, 187 Kan. 458, 357 P.2d 739.
6. Louisiana: La. Rev. Stat. Ann. § 14:14 (West).
7. Minnesota: Minn. Stat. Ann. § 611.026 (Supp. 1976) (West). The Minnesota statute clearly adopts the M’Naghten rule. However, in State v. Rawland, 294 Minn. 17, 199 N.W.2d 774 (1972), the Supreme Court of Minnesota construed the statute to permit the jury to consider not only evidence relating to the defendant’s cognition, that is, his knowledge of the nature of the act and its wrongfulness, but also the element of volition and his capacity to control his behavior. Thus the Minnesota statute has been judicially construed to permit a jury to consider the essential criteria contained in the ALI test.
8. Mississippi: Hill v. State, 339 So. 2d 1382 (Miss. 1976).
9. Nebraska: State v. Russell, 194 Neb. 64, 230 N.W. 2d 196 (1975).
10. Nevada: Williams v. State, 85 Nev. 169, 451 P.2d 848, cert. den. 396 U.S. 916 (1969).
11. New Jersey: State v. Maik, 114 N.J. Super. 470, 277 A.2d 235, modified, 60 N.J. 203, 287 A.2d 715 (1972); overruled as to another matter, State v. Krol, 68 N.J. 236, 344 A.2d 289 (1975).
12. North Carolina: State v. Hammonds, 290 N.C.l, 224 S.E.2d 595 (1976).
13. Oklahoma: Suits v. State, 507 P.2d 1261 (Okla. Crim. 1973).
14. Pennsylvania: Commonwealth v. Bruno, 466 Pa. 245, 352 A.2d 40 (1976).
15. Rhode Island: State v. Page, 104 R.I. 323, 244 A.2d 258 (1968).
*21816. South Carolina: State v. Valenti, 265 S.C. 380, 218 S.E.2d 726 (1975).
17. South Dakota: S.D. Compiled Laws Ann. § 22-3-1(4).
18. Washington: Wash. Rev. Code § 9A. 12.010.
The following states have rejected the limited test of M’Naghten and have added as an alternative test of legal insanity, the incapacity of the defendant to control his actions because of some irresistible force or impulse.
1. Alabama: Johnson v. State, 56 Ala. App. 105, 319, So. 2d 725 (1975).
2. Colorado: Colo. Rev. Stat. § 16-8-101.
3. Georgia: Ga. Code Ann. § 26-702; 26-703.
4. New Mexico: State v. Chambers, 84 N.M. 309, 502 P.2d 999 (1972).
5. Virginia: Thompson v. Commonwealth, 193 Va. 704, 70 S.E.2d 999 (1972).
The following states have adopted in substance the ALI standard, although the exact language used in the particular statute or court decision may vary:
1. Alaska: Alaska Stat. § 12.45.083.
2. Arkansas: Ark. Stat. Ann. § 41-601 (Supp. 1976).
3. Connecticut: Conn. Gen. Stat. Ann. § 53a-13 (Supp. 1977).
4. Delaware: Del. Code tit. 11, § 401 (1953).
5. Hawaii: Haw. Rev. Stat. § 704-400 (Special Supp. 1975).
6. Idaho: Idaho Code § 18-207 (Supp. 1977).
7. Illinois: Ill. Ann. Stat. ch. 38, § 1005-1-11. (Smith-Hurd).
8. Indiana: Hill v. State, 252 Ind. 601, 251 N.E.2d 429 (1969).
9. Kentucky: Ky. Rev. Stat. § 504.020.
10. Maine: Me. Rev. Stat. tit. 17-A, § 58 (Supp. 1976).
11. Maryland: Md. Ann. Code art. 59, § 25.
12. Massachusetts: Commonwealth v. McHoul, 352 Mass. 544, 226 N.E.2d 556 (1967).
13. Michigan: Mich. Stat. Ann. § 28.1044(1) (Supp. 1977).
14. Missouri: Mo. Ann. Stat. § 552.030 (Supp. 1977) (Vernon).
15. Montana: Mont. Rev. Codes Ann. § 95-501 (Supp. 1977).
16. New York: N.Y. Penal Law § 30.05 (McKinney).
17. North Dakota: N.D. Cent. Code § 12.1-04-03; N.D. Cent. Code § 12.1-04-03 (Supp. 1977).
*21918. Ohio: State v. Jackson, 32 Ohio St. 2d 203, 291 N.E.2d 432 (1972), cert. den. 411 U.S. 909 (1972).
19. Oregon: Or. Rev. Stat. § 161.295.
20. Tennessee: Graham v. State, 547 S.W.2d 531 (Tenn. 1977).
21. Texas: Tex. Penal Code Ann. § 8.01 (Vernon).
22. Utah: Utah Code Ann. § 76-2-305 (Supp. 1977).
23. Vermont: Vt. Stat. Ann. tit. 13, § 4801.
24. West Virginia: State v. Myers,_W. Va__, 222 S.E.2d 300 (1976).
25. Wisconsin: Wis. Stat. Ann. § 971.15 (West).
26. Wyoming: Wyo. Stat. § 7-242.4(a) (Supp. 1975).
In summary, it may be stated that the M’Naghten rule is no longer the majority rule in this country. The demise of the M’Naghten rule is well deserved. It is based upon a primitive concept of the psychological makeup of a human being. It is a rule which ignores a century of knowledge gained from an intensive study of the human mind and its mental processes. In line with the trend of the last ten years, I would reject the outmoded M’Naghten test.
In the majority opinion it is stated that the defendant failed to offer an expert witness who could conclusively state that the defendant suffered from a mental disease or defect. The majority then concludes that it would not have made any difference if the jury had been instructed on the ALI standard. This is not a fair statement of the evidence. The defense offered testimony to show that the defendant had a history of psychological dissociation. Two medical experts testified that the defendant, because of his psychological makeup, was incapable of conforming his behavior with the law and with ethical and moral values. One medical expert testified unequivocally that in his opinion the defendant did not have the capacity to control his behavior at the time the homicide was committed. This evidence clearly would require an appropriate instruction on the defense of legal insanity.
I would reverse and remand the case for a new trial with directions to the trial court to instruct the jury on the ALI standard for legal insanity as set forth in the defendant’s proposed instructions.
Owsley, J., joins in the foregoing dissenting opinion.