WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
GIBSON E. GORMAN, Judge, presiding.
Rehearing denied May 20, 1957.
After trial in the criminal court of Cook County, a jury found the defendant, Richard Daniel Carpenter, guilty of murder and fixed his punishment at death. Execution has been stayed pending writ of error proceedings in this court.
The sole defense to the crime alleged, the murder of a Chicago police officer, was insanity; and the defendant's principal assignment of error is that the trial court erroneously instructed the jury on this issue.
It is asserted that the court committed reversible error in giving, at the State's request, the following instructions:
No. 17: "The Court instructs the jury that a safe and reasonable test in all cases of insanity is that whenever it appears from the evidence that at the time of doing the act charged the defendant was not of sound mind but affected with insanity and that such affliction was the efficient cause of the act, and that he would not have done the act but for that affliction, he ought to be acquitted. But the unsoundness of mind, or affliction 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 obliterating the sense of right or wrong as to the particular act done or depriving the accused of the power of choosing between right and wrong."
No. 18: "The Court instructs the jury that if from all the evidence in the case you believe beyond a reasonable doubt that the defendant committed the crime of which he is accused, in manner and form as charged in the indictment, and at the time of the commission of such crime the defendant knew that it was wrong to commit such crime and was mentally capable of choosing either to do or not to do the act or acts constituting such crime and of governing his conduct in accordance with such choice, then it is your duty under the law to find him guilty, even though you should believe from the evidence that at the time of the commission of the crime he was not entirely and perfectly sane."
No. 27: "The court instructs the jury, that if you believe from the evidence beyond a reasonable doubt that at the time of committing the alleged crime (if you believe from the evidence beyond a reasonable doubt that he did commit such crime) the defendant was able to distinguish right from wrong as to the particular act done and was able to choose between them and was able to control his action accordingly, then you can not acquit him on the ground of insanity."
These instructions are admittedly in accord with previous expressions of this court, but the defendant argues that they are unsound and should be abandoned. He maintains that in lieu thereof an instruction similar to the following (which was refused by the trial court) should be given:
No. 31: "The Court instructs the jury that, unless you believe beyond a reasonable doubt that Richard Daniel Carpenter was not suffering from a diseased or defective mental condition, or, that if he is so afflicted, that the criminal act charged was not the product of such diseased or defective mental condition, you must find the accused not guilty by reason of insanity.
"Thus, your task would not be completed upon finding, if you did find, that Richard Daniel Carpenter suffered from a mental disease or defect. He would still be responsible for his unlawful act if there was no causal relation between such mental abnormality and the act. These questions must be determined by you from the facts which you find to be fairly deducible from the testimony and the evidence in this case, keeping in mind that the defense is not required to prove insanity beyond a reasonable doubt, but, rather, need only establish by the evidence a reasonable doubt of the sanity of Richard Daniel Carpenter."
The defendant relies mainly upon Durham v. United States, 214 F.2d 862, which in turn, was influenced by State v. Pike, 49 N.H. 399. He insists that the instructions given in this case are at variance with "scientific realities" and that our law in this regard is in need of revision in the manner indicated.
The relationship of mental illness to criminal responsibility is, of course, an age-old problem. (See, generally, Hall, General Principles of Criminal Law, chap. 14, pp. 477-538.) It is extremely difficult to formulate principles delineating when and to what extent a mental disease or defect so reduces the voluntariness of an accused's act as to exclude responsibility for that act, and even more difficult to apply those principles in concrete cases. Yet it is the task of the judiciary to do so, and every reasonable effort must be made to the end that a just result is obtained.
The leading common-law decision is McNaghten's case, 8 Eng. Rep. 718 (1843), and with subsequent modifications the rules there enunciated make up the bulk of the law on this subject, both in Great Britain and the United States Of these rules, the most important was that which has become known as the "right and wrong test." It follows: "* * * to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong."
Objections to this test were voiced early and are heard to this day. The criticism has not altered in any essential respect, it being charged that while the rule takes account of the impairment of cognition or intellect it ignores impairment of volitional capacity or will. It is said that the rule fails to recognize the situation where one knows it is wrong to do a certain act but because of mental illness is not able to control his actions accordingly.
While the McNaghten Rules have been interpreted in various ways and are not without their defenders (see, e.g., Hall, In Defense of the McNaghten Rules, 42 A.B.A.J. 917,) such criticism is wide of the mark in the instant case, for courts in this State do not rely solely upon the "right and wrong test." "The mere ability to distinguish right from wrong is not the correct test * * * the accused must also be mentally capable of choosing either to do or not do the act and of governing his conduct in accordance with such choice." (People v. Lowhone, 292 Ill. 32, 48.) Thus, as will be noted from a reading of the instructions in this case, there is no responsibility for one even if he knows the difference between right and wrong if he is not "capable of choosing either to do or not to do the act or acts constituting such crime and of governing his conduct in accordance with such choice." (Instruction No. 18.) And in instruction No. 27 the jury is told that the defendant is responsible if he "was able to distinguish right from wrong as to the particular act done and was able to choose between them and was able to control his action accordingly * * *." These are similar to the form tentatively recommended by the American Law Institute in its draft of a Model Penal Code: "A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law." The American Law Institute, Model Penal Code, Tentative Draft, section 4.01.
This common thread of excusing conduct over which the accused has no control is also present in the so-called "irresistible impulse test" which Illinois and an apparent minority of other jurisdictions expressly recognize. (See instruction No. 17 above.) But here again the defendant charges that there is undue recognition of the intellectual faculty. However, a reading of the instruction discloses that this is not true. For under this instruction there is no criminal responsibility if the "unsoundness of mind" or "affliction of insanity" was of such a degree "as to create an uncontrollable impulse to do the act charged by overriding the reason and judgment and obliterating the sense of right or wrong as to the particular act done or depriving the accused of the power of choosing between right and wrong." In short, the three instructions given in this case are not subject to the criticism lodged against them.
As noted, the defendant not only maintains that the given instructions were fatally defective, but that the instruction which he tendered, adapted from Durham v. United States, ...