(dissenting)—The major issue of the subject appeal is whether the jury was properly instructed on insanity and, if not, whether this constituted prejudicial error.
The majority, in affirming the trial court and the Court of Appeals, upholds the validity of instruction 10, instructing the jurors the defendant would be "insane" only if he couldn't distinguish between legal right and wrong. The majority eliminated the moral right and wrong test by concluding that "moral" wrong and "legal" wrong are synonymous.
I disagree, for I believe that although at times moral and legal are "synonymous,” sometimes they are distinguishable. This is a factual issue to be determined by the trier of the fact, and not by the courts as a matter of law. The submission of instruction 10 constituted prejudicial error. I would reverse for a new trial based on the instruction's erroneous statement of the law on insanity.
The majority has correctly set forth the facts, but I would like to supplement them by adding some pertinent information. Dr. Nathan Kronenberg, the psychiatrist who testified Crenshaw was competent to stand trial, added that in examining Crenshaw he noted tangentiality, loose associations, delusions of grandeur, religiosity (including a belief in his possession of special powers), auditory hallucinations, lack of insight, and extreme emotional lability on the part of the defendant. He further testified that the defendant's ability to assist in his defense was distorted by his paranoia. Report of Proceedings, at 40-43. Dr. Kronenberg further related that the defendant's perception of right and wrong and his capacity to appreciate the consequences of his behavior were very likely distorted at the time of the offense. Report of Proceedings, at 50.
Dr. John Mahaffy, another psychiatrist who examined Crenshaw, concluded the defendant was suffering from a paranoid state, and was in remission from former psychotic episodes. Report of Proceedings, at 60. Although he testified Crenshaw was competent to stand trial, he qualified his *809testimony with a statement that the defendant's legal sanity at the time of the offense would be suspect if the defendant at that time was suffering from a psychotic episode. Report of Proceedings, at 61. The defendant has a history of mental problems. He was hospitalized in his home state of Texas 15 times between 1970 and 1978, where he was diagnosed as a paranoid schizophrenic.
Washington's test for insanity, a codification of M'Naghten's rule, reads:
To establish the defense of insanity, it must be shown that:
(1) At the time of the commission of the offense, as a result of mental disease or defect, the mind of the actor was affected to such an extent that:
(a) He was unable to perceive the nature and quality of the act with which he is charged; or
(b) He was unable to tell right from wrong with reference to the particular act charged.
(2) The defense of insanity must be established by a preponderance of the evidence.
RCW 9A.12.010.
The issue before us is whether the terms "right" and "wrong" as used in RCW 9A.12.010(l)(b) should be qualified for the jury. At trial, the jury was instructed the defendant would not be legally insane if he knew "legal right" from "legal wrong". Crenshaw contends the trial court erred in defining "right and wrong" as "legal right" and "legal wrong". The majority of the Court of Appeals held that
If the accused knew his act was wrong—either legally or morally—then he cannot be excused for his crime by the insanity defense.
(Footnote omitted.) State v. Crenshaw, 27 Wn. App. 326, 338-39, 617 P.2d 1041 (1980). The Court of Appeals concluded that the trial court did not err in its instruction on insanity because, if the defendant knew his conduct was contrary to law, he could not be found legally insane even if he could not distinguish moral right from moral wrong. The majority avoids the problem by holding that legal right and *810moral right are "synonymous".
The defendant urges this court to define the terms solely as "moral right and wrong" or, alternatively, to leave the terms undefined for the jury, as does the pattern instruction.3 The Court of Appeals argued that if the moral sense of the terms becomes the standard, the defense would be broadened significantly. Anyone would be able to argue that his actions were justifiable by reference to his personal morality. This court has held that the insanity defense is only intended to exculpate those persons who have completely lost contact with reality, such that the criminal law cannot affect their behavior. State v. McDonald, 89 Wn.2d 256, 571 P.2d 930 (1977).
The majority and the Court of Appeals miss the point. Of course, as they contend, the standard of right and wrong must be an objective one. That is not to say, however, that only the criminal code can provide that standard. I agree with the dissenting judge, Ringold, J., of the Court of Appeals, that if a defendant knows his acts are contrary to law, an inference may be drawn, by a jury, that defendant knew his acts were morally wrong.
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.
*811Crenshaw, at 344.
I do not believe that a jury's function in this regard should be usurped. As used in RCW 9A.12.010(l)(b), the terms "right" and "wrong" refer to their moral sense, and not to a defendant's knowledge that he has acted contrary to the law.
It is not the mere assertion by a defendant that he "thought" he committed no moral wrong which would excuse his otherwise criminal act. The statute requires that such belief be the result of mental disease or defect and that such defect existed at the time of the commission of the offense. As Justice Cardozo stated in People v. Schmidt, 216 N.Y. 324, 340, 110 N.E. 945 (1915):
It is not enough, to relieve from criminal liability, that the prisoner is morally depraved. It is not enough that he has views of right and wrong at variance with those that find expression in the law. The variance must have its origin in some disease of the mind. The anarchist is not at liberty to break the law because he reasons that all government is wrong. The devotee of a religious cult that enjoins polygamy or human sacrifice as a duty is not thereby relieved from responsibility before the law. In such cases the belief, however false according to our own standards, is not the product of disease. Cases will doubtless arise where criminals will take shelter behind a professed belief that their crime was ordained by God ... We can safely leave such fabrications to the common sense of juries.
(Citations omitted.)
I also agree with Judge Ringold, who pointed out that
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.
Crenshaw, at 343.
This court has previously indicated that the M'Naghten test involved the moral definition of right and wrong. Prior to codification of the M'Naghten rule into our statutory scheme, we held that a jury was correctly instructed when it was told that the insanity defense would lie if defendant '"was unable to perceive the moral qualities" of his act. *812(Italics mine.) State v. Davis, 6 Wn.2d 696, 708, 108 P.2d 641 (1940). The sole question is whether we want to hold a defendant answerable to our criminal law, notwithstanding the barbaric or cruel nature of the defendant's acts. A mind which cannot distinguish moral right from wrong cannot be held accountable for acts performed as a result of that illness and while suffering under that influence.4
The majority, at page 798, surprisingly seems to concede that at times there is a difference between legal right and wrong and moral right and wrong, stating:
A narrow exception to the societal standard of moral wrong has been drawn for instances wherein a party performs a criminal act, knowing it is morally and legally wrong, but believing, because of a mental defect, that the act is ordained by God: such would be the situation with a mother who kills her infant child to whom she is devotedly attached, believing that God has spoken to her and decreed the act. See People v. Schmidt, [216 N.Y. 324, 110 N.E. 945 (1915)] at 339. Although the woman knows that the law and society condemn the act, it would be unrealistic to hold her responsible for the crime, since her free will has been subsumed by her belief in the deific decree. People v. Schmidt, supra.
This is exactly the point I wish to make in the subject case. Crenshaw knew if he killed his wife he was violating the *813law, but he believed he had a duty to do it under the teaching of his Moscovite "religious" beliefs. To determine his insanity under M'Naghten, as codified in RCW 9A.12-.010, a determination must be made as to what was morally right and wrong. The jury had this duty and responsibility, but to do so it had to be properly instructed. Instruction 10 wrongly limited the jury to the legal right and wrong test and prevented it from determining whether Crenshaw knew the difference between moral right and wrong at the time he killed his wife. This constituted prejudicial error.
The majority concludes at page 805, "Thus, we hold prospectively that as a general rule no definition of wrong should accompany an insanity defense instruction" (italics mine), impliedly admitting and agreeing that instruction 10 is defective and that the jury should be instructed under both moral and legal wrong in order to correctly determine insanity. Without saying so, the majority adopts WPIC 20.01 as a correct instruction on insanity. Crenshaw argued use of WPIC 20.01 would have permitted his lawyers to argue moral right and wrong as the true test of insanity in his case, and that his jury should have been so instructed. The majority holds that future defendants shall have the benefit of WPIC 20.01, but not defendant Crenshaw.
I would reverse and remand to the trial court for a new trial on the basis that instruction 10 was defective and constituted prejudicial error.
Utter and Dolliver, JJ., concur with Dore, J.
Reconsideration denied March 30, 1983.
The Court of Appeals majority, although enunciating the test set out above, also somewhat inconsistently stated:
In most insanity cases, jury instructions need not distinguish between legal or moral wrong because the issue rarely arises. M'Naghten and our statutes clearly allow an open-ended instruction. Accordingly, the typical practice of submitting WPIC 20.01 to the jury without attempting to define "right" and "wrong" is appropriate.
State v. Crenshaw, 27 Wn. App. 326, 339, 617 P.2d 1041 (1980). It is particularly in insanity cases, however, that the problem may arise as to whether a defendant confused legal actions (i.e., man's law) with moral actions (i.e., God's law). Petitioner here suffered from such a conflict. I see no reason to establish an insanity test which would single out those defendants whose mental disease or defect has so disordered their minds that they operate under a moral code which conflicts with our legal code, while leaving to the jury the unqualified determination, in all other cases, of whether a defendant knows right from wrong.
Again, I turn to the words of Justice Cardozo: "We must not, however, exaggerate the rigor of the rule by giving the word 'wrong' a strained interpretation, at war with its broad and primary meaning, and least of all, if in so doing, we rob the rule of all relation to the mental health and true capacity of the criminal. The interpretation placed upon the statute by the trial judge may be tested by its consequences. A mother kills her infant child to whom she has been devotedly attached. She knows the nature and quality of the act; she knows that the law condemns it; but she is inspired by an insane delusion that God has appeared to her and ordained the sacrifice. It seems a mockery to say that, within the meaning of the statute, she knows that the act is wrong. If the definition propounded by the trial judge is right, it would be the duty of a jury to hold her responsible for the crime. We find nothing either in the history of the {M'Naghten] rule, or in its reason and purpose, or in judicial exposition of its meaning, to justify a conclusion so abhorrent. No jury would be likely to find a defendant responsible in such a case, whatever a judge might tell them. But we cannot bring ourselves to believe that in declining to yield to such a construction of the statute, they would violate the law." People v. Schmidt, 216 N.Y. 324, 339, 110 N.E. 945 (1915).