Page:Federal Reporter, 1st Series, Volume 10.djvu/206

 194 FEDERAL REPORTER. �aiid Gupporting the annonncement by inflexible and uniform execution, is the way to keep them from committing the obnoxious act. If the end — the preven- tion bf crime — is justifiable, thenthe neeessary steps for the prevention of crime are also justifiable. And despotic as is the assumption that punish- mentisto be inflicted, not as a matter of justice in obedience to a prean- nouneed law, but, as a matter of policy irrespective of deserts, the conclusion legitimately follows from Mr. Mill's premises. �It being, therefore, settled that " irresistible impulse," to constitute a defence, must be that of a person otherwise insane, we proceed to consider the authori- ties that establish auch impulse, under sueh conditions, as a defence. In doing so it must be, at the outset, conceded that, by the English courts, this defence, as here stated, is rejected. No person, however insane, can, by the law as now (1882) expounded by those courts, be acquitted of a crime if it appear to the satisfaction of the jury that he knew the nature and quality of the act he was doing, or, if he did not know it, if he knew that the act was wrong. But if, as may readily be shown, it is demonstrable that there sometimes is, among insane persons, an •' irresistible impulse" to an act co-existing with a knowledge that it was wrong, then cornes the question whether lunatics of this stamp are legally punishable for such acts. ihat they are not, the tend- ency of Aoierican authority is to maintain. And even in England we flnd Mr. Stephen, in bis work on English Criminal Law, (London, 1863, p. 91,)^ a work as remarkable for philosophical symmetry as for legal accuracy, — stat- ing (1863) the questions to be, "in popular language, Was it his actf Couid he help itf Did he know it was wrong f Ile goes on furtlier to say: "It would be absurb to deny the possibility that such [irresistible] impulses may occur, or the fact that they have occurred, and have been acted on. Instances are also given in which the impulse was felt, and was resisted. ihe only question which the existence of such impulses can raise in the administration of criminal justice, is whether the particular impulse in question was irresist- ible as well as unresisted. If it were irresistibU tfie person acaused is entitled to be acquitted, beoause the act was not voluntary, and was not, properly, his act. If the impulse was irresistible, the fact that it proceeded from disease is no excuse at all." Ses MoFarland's Case, 8 Abb. IT. Y. Pr. {N. S.) 57. In Sir J. Stephen's testimony before the English homicide committee the same view is taken. Whart. Crim. Law, (8th Ed.) § 45. �In Illinois, in 1863, it was declared by the supreme court that a safe and reasonable test would be, that whenever it should appear from the evidence that, at the time of doing the act charged, the prisoner was not of sound mind, but affected with insauity, and such affection was the efficient cause of the act, and that he would not have done the act but for that affection, he should be acquitted. But this unsoundness of mind, or affection of insanity, must be of such a degree as to create an uncontrollable impulse to do the act charged by overriding the reason and judgment, and obliteratingthe sense of right and wrong as to the particular act done, and depriving the accused of the power of ehoosing between them. If it be shown the act was the consequence of an insane delusion, and caused by it, and by nothing else, justice and humanity alike demand an acquittai. Sound mind is presumed if the accused is neithei an idiot, a lunatic, nor "affected with insanity." If he be insane, Sound mind ��� �