SOMERVILLE, J.
— In this case the defendants have been convicted of the murder of Bennett Parsons, by shooting him with a gun, one of the defendants being the wife and the other the daughter of the deceased. The defense set up in the trial was the plea of insanity, the evidence tending to show that the [581]*581daughter was an idiot, and the mother and wife a lunatic, subject to insane delusions, and that the killing on her part was the offspring and product of those delusions.
The rulings of the court raise some questions of no less difficulty than of interest, for, as observed by a distinguished American judge, “of all medico-legal questions, those connected with insanity are the most difficult and perplexing.” Per Dillon, C. J., in State v. Felter, 35 Iowa, 67. It has become of late a matter of comment among intelligent men, including the most advanced thinkers -in the medical and legal professions, that the deliverances of the law courts on this branch of our jurisprudence have not heretofore been at all satisfactory, either in the soundness of their theories, or in their practical application. The earliest English decisions, striving to establish rules and tests on the subject, including alike the legal rules of criminal and civil responsibility, and the supposed tests of the existence of the disease of insanity itself, are now admitted to have been deplorably erroneous, and, to say nothing of their vacillating character, have long since been abandoned. The views of the ablest of the old text writers and sages of the law were equally confused and uncertain in the treatment of these subjects, and they are now entirely exploded. Time was in the history of our laws that the veriest lunatic was debarred from pleading his providential affliction as a defense to his contracts. It was said, in justification of so absurd a rule, that no one could be permitted to stultify himself by pleading his own disability. So great a jurist as Lord Coke, in his attempted classification of madmen, laid down the legal rule of criminal responsibility to be that one should “ wholly have lost his memory and understanding;” as to which Mr. Erskine, when defending Hadfield for shooting the King, in the year 1800, justly observed : “No such madman ever existed in the world.” After this great and historical case, the existence of delusion promised for a while to become the sole test of insanity, and acting under the duress of such delusion was recognized in effect as the legal rule of responsibility. Lord Kenyon, after ordering a verdict of acquittal in that case, declared with emphasis that there was “ no doubt on earth” the law was correctly stated in the argument of counsel. But, as it was soon discovered that insanity often existed without delusions, as well as delusions without insanity, this view was also abandoned. Lord Hale had before declared that the rule of responsibility was measured by the mental capacity possessed by a child fourteen years of age, and Mr. Justice Tracy, and other judges, had ventured to decide that, to be non-punishable for alleged acts of crime, “a man must be totally deprived of his understanding and memory, so as not [582]*582to know what he was doing — no more than an infant, a brute, or a wild ’beast.” — Arnold's case, 16 Iiow. St. Tr. '764. All these rules have necessarily been discarded in modern times in the light of the new scientific knowledge acquired by a more thorough study of the disease of insanity. In Bellingham's Case, decided in 1812, by Lord Mansfield at the Old Bailey, (Coll, on Lnn. 630), the test was held to consist in a knowledge that murder, the crime there committed, was “ against the laws of God and nature,” thus meaning an ability to distinguish between right and wrong in the abstract. This rule was not adhered to, but seems to have been modified so as to make the test rather a knowledge of right and wrong as applied to the particular act. — Lawson on Insanity, 231, §7 et seq. The great leading case on this subject in England, is McMaghten's case, decided in 1843 before the English House of Lords, 10 Cl. & F. 200 ; s. o., 2 Lawson’s Or. Def. 150. It was decided by the judges in that case, that, in order to entitle the accused to acquittal, it must be clearly proved that, at the time of committing the offense, he was laboring 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, not to know that what he was doing was wrong. This rule is commonly supposed to have heretofore been adopted by this court, and has been followed by the general current of American adjudications. — Boswell v. The State, 63 Ala. 307; s. c., 35 Amer. Rep. 20 ; s. c., 2 Lawson’s Cr. Def. 352 ; McAllister v. State, 17 Ala 434; Lawson on Insanity, 219-221, 231.
/ In view of these conflicting decisions, and of the new light thrown on the disease of insanity by the discoveries of modern psychological medicine, the courts of the country may well hesitate before blindly following in the unsteady footsteps found upon the old sandstones of our common law jurisprudence a century ago. The trial court, with prudent propriety, followed the previous decisions of this court, the correctness of which, as to this subject, we are now requested to review.
We do not hesitate to say that we re-open the discussion of this subject with no little reluctance, having long hesitated to disturb our past decisions on this branch of the law. Nothing could induce us to do so except an imperious sense of duty, which has been excited by a protracted investigation and study, impressing our minds with the conviction that the law of insanity as declared by the courts on many points, and especially the rule of criminal accountability, and the assumed tests of disease, to that extent which confers legal irresponsibility, have not kept pace with the progress of thought and discovery, in the present advanced stages of medical science. Though science has led tlie way, the courts of England have declined [583]*583to follow, as shown by their adherence to the rulings in Mc-Naghten’s case, emphasized by the strange declaration made by the Lord Chancellor of England, in the House of Lords, on so late a day as March 11,1862, that “ the introduction of medical opinions and medical theories into this subject has proceded upon the vicious principle of considering insanity as a disease?”
It is not surprising that this state of affairs has elicited from a learned law writer, who treats of this subject, the humiliating declaration, that, under the influence of these ancient theories, “ the memorials of our jurisprudence are written all over with cases in which those who are now understood to have been insane, have been executed as criminals.” — 1 Bish. Cr. Law (7th Ed.), § 390. There is good reason, both for this fact, and for the existence of unsatisfactory rules on this subject. In what we say we do not intend to give countenance to acquittals of criminals, frequent examples of which have been witnessed in modern times, based on the doctrine of moral or emotional insanity, unconnected with mental disease, which is, not yet sufficiently supported by psychology, or recognized by law as an excuse for crime. — Boswell’s case, supra; 1 Whar. Cr. Law, (9th Ed.), § 43.
In ancient times, lunatics were not regarded as “unfortunate sufferers from disease, but rather as subjects of .demoniacal possession, or as self-made victims of evil passions.” They were not cared for humanely in asylums and hospitals, but were incarcerated in jails, punished with chains and, stripes, and often sentenced to death by burning or the gibbet. When put on their trial, the issue before the court then was not as now. If acquitted, they could only be turned loose on the community to repeat their crimes without molestation or restraint. They could not be committed to hospitals, as at the present day, to be kept in custody, cared for by medical attention, and often cured. It was not until the beginning of the present century that the progress of Christian civilization asserted itself by the exposure of the then existing barbarities, and that the outcry of philanthropists succeeded in eliciting an investigation of the British Parliament looking to their suppression.' Up to that period the medical treatment of the insane is known to have been conducted upon a basis of ignorance, inhumanity, and empiricism. — Amer. Cyclop., Yol 9 (1874), title, Insanity. Being punished for wickedness, rather than treated for disease, this is not surprising. The exposure of these evils not only led to the establishment of that most beneficient of modern civilized charities — the Hospital and Asylum for the Insane — but also furnished hitherto unequalled opportunities to the medical profession of investigating and treating insanity on the pathological basis of its being a disease [584]*584of the mind. Under these new and more favorable conditions the medical jurisprudence of insanity has assumed an entirely new phase. The nature and exciting causes of the disease have been thoroughly studied and more fully comprehended. The result is that the “right and wrong test,” as it is sometimes called, which, it must be remembered, itself originated with the medical profession, in the mere dawn of the scientific knowledge of insanity, has been condemned by the great current of modern medical authorities, who believe it to be “founded on an ignorant and imperfect view of the disease.” Encyc. Brit. Yol. 15, (9th Ed.), title, Insanity.
/ The question then presented seems to be, whether an old rule of legal responsibility shall be adhered to, based on theories of physicians promulgated a hundred years ago, which refuse to recognise any evidence of insanity, except the single test of mental capacity to distinguish right and wrong — or whether the courts will recognize as a possible fact, if capable of proof by clear and satisfactory testimony, the doctrine, now alleged by those of the medical profession who have made insanity a special subject of investigation, that the old test is wrong, and that there is no single test by which the existence of the disease, to that degree which exempts .from punishment, can in riivery case' be infallibly detected. ^The inquiry must not be unduly obstructed by the doctrine of stare deeisis, for the life of the common law system and the hope of its permanency consist largely in its power of adaptation to new scientific discoveries, and the requirements of an ever advancing civilization. There is inherent in it the vital principle of juridical evolution, which preserves itself by a constant struggle for approximation to the highest practical wisdom. It is not like the laws of the Medes and Persians, which could not be changed. In establishing any new rule, we should strive, however, to have proper regard for two opposite aspects of the subject, lest, in the words of Lord Hale, “on one side, there be a kind of inhumanity towards the defects of human nature^ or, on the other, too great indulgence to great crimes.’^, T It is everywhere admitted, and as to this there can be no idoubt, that an idiot, lunatic, or other person of diseased mind, !(Who is afflicted to such extent as not to know whether he is |doing right or wrong, is not punishable for any act which he jmay do while in that state.
Can the courts justly say, however, that the only test or rule of responsibility in criminal cases is the power to distinguish right from wrong, whether in the abstract, or as applied to the particular case ? Or may there not be insane persons, of a diseased brain, who, while capable of perceiving the difference between right and wrong, are, as matter of fact, so far under [585]*585the duress of such disease as to destroy the power to choose between right and wrong? \ Will the courts assume as a fact, not to be rebutted by any amount of evidence, or any new discoveries of medical science, that there is, and can be no such state of the mind as that described by a writer on psychological medicine, as one “in which the reason has lost its empire over the passions, and the actions by which they are manifested, to such a decree that the individual can neither repress the former, nor abstain from the latter?” — -Dean’s Med. Jur. 497.
Much confusion can be avoided in the discussion of this subject by separating the duty of the jury from that of the court-in the trial of a case of this character. The province of the jury is to determine facts,, that of the court to state the law. The rule in McWaghten's case arrogates to the court, in legal effect, the right to assert, as matter of law, the following propositions :
(1) . That there is but a single test of the existence of that degree of insanity, such as confers irresponsibility for crime.
(2) . That there does not exist any case of such insanity in which that single test — the capacity to distinguish right from wrong — does not appear.
(3) . That all other evidences of alleged insanity, supposed by physicians and experts, to indicate a destruction of the freedom of the human will, and the irresistible duress of one’s actions, do not destroy his mental capacity to entertain a criminal intent.
The whole difficulty, as justly said by the Supreme Judicial Court of New Hampshire, is, that “courts have undertaken to declare that to be law which is matter of fact." “If,” observes the same court, “the tests of insanity are matters of law, the practice of allowing experts to testify what they are should be discontinued ; if they are matters of fact, the judge should no longer testify without being sworn as a witness, and showing himself to be qualified to testify as an expert.” — State v. Pike, 49 N. H. 399.
We first consider what is the proper legal rule of responsibility in criminal cases.
No one can deny that there must be two constituent elements of legal responsibility in the commission of every crime, and no rule can be just and reasonable which fails to recognize either of them: (1). Capacity of intellectual discrimination ; and (2). Freedom of will. Mr. Wharton, after recognizing this fundamental and obvious principle, observes: “If there be either incapacity to distinguish between right and wrong as to the particular act, or delusion as to the act, or inability to refrain from doing the act, there is no responsibility,” — 1 Whar. Or. Law. (9th ed.), § 33. Says Mr. Bishop, in discussing this [586]*586subject: “There can not be, and there is not, in any locality, or age, a law punishing men for what they can not avoid.” — 1 Bish. Or. Law (7th ed.), § 3835.
If therefore, it be true, as matter of fact, that the disease of insanity can, in its action on the human brain through a shattered nervous organization, or in any other mode, so affect the mind as to subvert the freedom of the will, and thereby destroy the power of the victim to choose between the right and wrong, although he perceive it — by which we mean the power of volition to adhere in action to the right and abstain from the wrong — is such a one criminally responsible for an act done under the influence of such controlling disease? We clearly think not, and such, we believe to be the just, reasonable, and humane rule, towards which all the modern authorities in this country, legislation in England, and the laws of other civilized countries of the world, are gradually, but surely tending, as we shall further on attempt more fully to show.
We next consider the question as to the probable existence of sy,ch a disease, and the test of its presence in a given case.
It will not do for the courts to dogmatically deny the possible existence of such a disease, or its pathological and psychical effects, because this is a matter of evidence, not of law, or judicial cognizance. Its existence, and effect on the mind and conduct of the patient, is a question of fact to be proved, just as much as the possible existence of cholera or yellow fever formerly was before these diseases became the subjects of common knowledge, or the effects of delirium from fever, or intoxication from opium and alcoholic stimulants would be. \Tlie courts could, with just as much propriety, years ago, have*'denied the existence of the Copernican system of the universe, the efficacy of steam and electricity as a motive power, or the possibility of communication in a few moments between the continents of Europe and America by the magnetic telegraph, or that of the instantaneous transmission of the human voice from one distant city to another by the use of the telephone. These are scientific facts, first • discovered by experts before becoming-matters of common knowledge. So, in like manner, must be every other unknown scientific fact in whatever profession or department of knowledge. -. The existence of such a cerebral disease, as that which we have described, is earnestly alleged by the superintendents of insane hospitals, and other experts, who constantly have experimental dealings with the insane, and they are permitted every day to so testify before juries. The truth of their testimony — or what is the same thing, the existence or non-existence of such a disease of the mind — in each particular case, is necessarily a matter for the determination of the jury from the evidence.
[587]*587!So it is equally obvious that the courts, can not, upon any sound principle, undertake to say wliat are the invariable or infallible tests of such disease. The attempt has been repeatedly made, and has proved a confessed failure in practice. “Such a test,” says Mr. Bishop, “has never been found, not because those who have searched for it have not been able and diligent, but because it does not exist.” — 1 Bish. Or. Law (7th ed.), § 381. In this conclusion, Dr. Bay, in his learned work on the Medical Jurisprudence of Insanity, fully concurs. Bay’s Med. Jur. Ins. p. 39. (The symptoms and causes of insanity are so variable, and its pathology so complex, that no two cases may be just alike. “The fact of its existence,” says Dr. Bay, “is never established by any single diagnostic symptom, but bv the whole body of symptoms, no particular one of which is present in every case.” — Bay’s Med. Jur. of Ins. §24. Its exciting causes being moral, psychical, and physical, are the especial subjects of specialists’ study. What effect may be exerted on the given patient by age, sex, occupation, the seasons, personal surroundings, hereditary transmission, and other causes, is the subject of evidence based on investigation, diagnosis, observation, and experiment. Peculiar opportunities, never before enjoyed in the history of our race, are offered in the present age for the ascertainment of these facts, by the establishment of asylums for the custody and treatment of the insane, which Christian benevolence and statesmanship have substituted for jqils and gibbets. The testimony of these experts — differ as they may in many doubtful cases — would seem to be the best which can be obtained, however unsatisfactory it may be in some respects.
In the present' state of our law, under the rule in Mc-Nagh.ten's case, we are confronted with this practical difficulty, which itself demonstrates the defects of the rule. The courts in effect charge the juries, as matter of law, that no such men.tal disease exists, as that often testified to by medical writers, superintendents of insane hospitals, and other experts — that there can be as matter of scientific fact no cerebral defect, congenital or acquired, which destroys the patient’s power of self-control — his liberty of will and action — provided only he retains a mental consciousness of right and wrong. The experts are immediately put under oath, and tell the juries just the contrary, as matter of evidence ; asserting that no one of ordinary intelligence can spend an hour in the wards of an insane asylum without discovering such cases, and in fact that “the whole management of such asylums presupposes a knowledge of right and wrong on the part of their inmates.” — Guy &F. on Forensic Med. 220. The result in practice, we repeat, is, that the courts charge one way, and the jury, following an alleged high[588]*588er law of humanity, find another, in harmony with the evidence.
/ In Bucknill on Criminal Lunacy, p. 59, it is asserted as “the result of observation and experience, that in all lunatics, and in the most degraded idiots, whenever manifestations of any mental action can be educed, the feeling of right and wrong may be proved to exist.”
“With regard to this test”, says Dr. Russell Reynolds, in his work on “The Scientific value of the Legal Tests of Insanity,” p. 34 (London, 1872), I may say, and most emphatically, that it is utterly untrustworthy, because untrue to the obvious facts of Nature.”
In the learned treatise of Drs. Bucknill and Tuke on “Psychological Medicine”, p. 269 (4th ed. London, 1879), the legal tests of responsibility are discussed, and the adherence of the courts to the right and wrong test is deplored as unfortunate, the true principle being stated to be “whether, in consequence of congenital defect or acquired disease, the power of self-control is absent altogether, or is so far wanting, as to render the individual irresponsible.” It is observed by the authors : “As has again and again been shown, the unconsciousness of right and wrong is one thing, and the powerlessness through cerebral defect or disease to do right, is another. To confound them in an asylum would have the effect of transferring a considerable number of the inmates thence to the treadmill or the gallows.”
Dr. Peter Bryce, Superintendent of the Alabama Insane Hospital for more than a quarter century past, alluding to the moral and diciplinary treatment to which the insane inmates are subjected, observes: “They are dealt with in this institution, as far as it is practicable to do so, as rational beings; and it seldom happens that we meet with an insane person who can not be made to discern, to some feeble extent, his duties to himself and others, and his true relations to society.” Sixteenth Annual Rep. Ala. Insane Hosp. (1876), p. 22 ; Biennial Rep. (1886), pp. 12-18.
Other distinguished writers on the medical jurisprudence of insanity have expressed like views, with comparative unanimity. And no where do we find the rule more emphatically condemned than by those who have the practical care and treatment of the insane in the various lunatic asylums of every civilized country. A notable instance is found in the following resolution unanimously passed at the annual meeting of the British Association of medical officers of Asylums and Hospitals for the Insane, held in London, July 14,1864, where there were present fifty-four medical officers :
“Resolved, That so much of the legal test of the mental [589]*589condition of an alleged criminal lunatic as renders him a responsible agent, because he knows the difference between right and wrong, is inconsistent with the fact, well known to every member of this meetiug, that the power of distinguishing between right and wrong exists very frequently in those who are undoubtedly insane, and is often associated with dangerous and uncontrollable delusions.” Judicial Aspects of Ins. (Ordronaux, 1877), 423-424.
These testimonials as to a scientific fact are recognized by intelligent men in the affairs of every day business, and are constantly acted on by juries. They can not be silently ignored by judges. Whether established or not, there is certainly respectable evidence tending to establish it, and this is all the courts can require.
Nor are the modern law writers silent in their disapproval of the alleged test under discussion. It meets with the criticism or condemnation of the most respectable and advanced in thought among them, the tendency being to incorporate in the legal rule of responsibility “not only the knowledge of good and evil, but the power to choose the one, and refrain from the other.” Browne’s Med. Jnr. of Insanity, §§ 13 et seq., § 18; Ray’s Med. Jur, §§ 16-19; Whart. & Stilles’ Med. Jnr. § 59 ; 1 Whart. Cr. Law (9th ed.), §§ 33, 43, 45 ; 1 Bish. Or. Law (7th ed.), § 386 et seq ; Judicial Aspects of Insanity (Ordronaux), 419 ; 1 Green. Ev. § 372 ; 1 Steph. Hist. Or. Law, § 168; Amer. Law Rev. Yol. 4 (1869-70), 236 et seq. 7
The following practicable suggestion is made in fne able treatise of Balfour Browne above alluded to: “In a case of alleged insanity, then,” he says, “if the individual suffering from enfeeblement of intellect, delusion, or any other form of mental aberration, was looked upon as, to the extent of this delusion, under the influence of duress (the dire duress of disease), and in so far incapacitated to choose the good and eschew the evil, in so far, it seems to us” he continues, “would the requirements of the law be fulfilled ; and in that way it would afford an opening, by the evidence of experts, for the proof of the amount of self-duress in each individual case, and thus alone can the criterion of law and the criterion of the inductive science of medical psychology be made to coincide''' Med. Jur. of Ins. (Browne), § 18.
This, in our judgment, is the practical solutiou of the difficulty before us, as it preserves to the courts and the juries, respectively, a harmonious field for the full assertion of their time honored functions.
|So great, it may be added, are the embarrassments growing out of the old rule, as expounded by the judges in the House of English Lords, that, in March, 1874, a bill was brought [590]*590before the House of Commons, supposed to have been drafted by the learned counsel for the Queen, Mi'. Fitzjames Stephen, which introduced into the old rule the new element of an absence of the power of self-control, produced by diseases affecting the mind, and this proposed alteration of the law was cordially recommended by the late Chief Justice Cock-burn, his only objection being that the principle was proposed to be limited to the case of homicide. — 1 Wliart. Cr. Law (9th ed.), § 45, p. 66, note 1; Browne’s Med. Jur. of Insan. § 10, note 1.
There are many well considered cases which support these views.
In the famous case of Hadfield, 21 How. St. Tr. 1282, s. c. 2 Lawson’s Cr. Def. 201-215, who was indicted and tried for shooting the King, and who was defended by Mr. Erskine in an argument most able and eloquent, it clearly appeared that the accused understood the difference between right and wrong as applied to the particular act: Yet he labored under the delusion that he had constant intercourse with the Divine Creator; that the world was coming to an end, and that, like Christ, he must be sacrificed for its salvation. He was so much under the duress of the delusion that he “ must be destroyed, but ought not to destroy himself,” that he committed the act for the specific purpose of being arrested and executed. He was acquitted on being tried before Lord Kenyon, and, no one ever doubted, justly so.
The case of United States v. Lawrence, 4 Cr. C. C. Rep. 518, tried in 1835, presented another instance of delusion, the prisoner supposing himself to be the King of England and of the United States as an appendage of England, and that General Jackson, then President, stood in his way in the enjoyment of the right. Acting under the duress of this delusion, the accused assaulted the President by attempting to shoot him with a pistol. He was, in five minutes, acquitted by the jury on the ground of insanity.
The case of the United States v. Guiteau, 10 Fed. Rep. 161, s. c. 2 Lawson’s Cr. Def., 162, is still fresh in cotemporary recollection, and a mention of it can scarcely be omitted in the discussion of the subject of insanity. The accused was tried, sentenced, and executed for the assassination of James A. Garfield, then President of the United States, which occurred in July, 1881. The accused himself testified that he was impelled to commit the act of killing by inspiration from the Almighty, in order, as he declared, “to unite the two factions of the Republican party, and thereby save the government from going into the hands of the ex-rebels and their Northern allies.” There was evidence of various symptoms of [591]*591mental unsoundness, and some evidence tending to prove such an alleged delusion, but there was also evidence to the contrary, strongly supported by the most distinguished experts, and looking to the conclusion, that the accused entertained no such delusion, but that, being a very eccentric and immoral man, he acted from moral obliquity, the morbid love of notoriety, and with the expressed hope that the faction of the Republican party, in whose interest he professed to act, would intervene to protect him. The case was tried before the United States District Court, for the District of Columbia, before Mr. Justice Cox, whose charge to the jury is replete with interest and learning. While he adopted the right and wrong test"of insanity, he yet recognized the principle, that, if the accused in fact entertained an insane delusion, which was the product of the disease of insanity, and not of a malicious heart and vicious nature, and acted solely under the influence of such delusion, he could not be charged with entertaining a criminal intent. An insane delusion was defined to be “ an unreasoning and incorrigible belief in the existence of facts, which are either impossible absolutely, or impossible under the circmnstances of the individual,” and no doubt the ease was largely determined by the application of this definition by the jury. It must ever be a mere matter of speculation what influence may have been exerted upon them by the high personal and political significance of the deceased, as the Chief Magistrate of the Government, or other peculiar surroundings of a partisan nature. The case in its facts is so peculiar as scarcely to serve the purpose of a useful precedent in the future.
We note other adjudged cases, in this country, which support the modern rule for which we here contend, including one decided in England as far back as 1840, often referred to by the text writers. In Rex v. Oxford, 2 O. & P. 225, Lord Denman clearly had in mind this principle, when, after observing that one may commit a crime and not be responsible, he used this significant language : “ If some controlling disease was in truth the acting power within him, which he could not resist, then he will not be responsible.” The accused in. that case acted under the duress of a delusion of an insane character.
In State v. Felter, 35 Iowa, 68, the capacity to distinguish between right and wrong was held not to be a safe test of criminal responsibility in all cases, and it was accordingly decided, that, if a person commit a homicide, knowing it to be wrong, but do so under the influence of an uncontrollable and irresistible impulse, arising not from natural passion, but from an insane condition of the mind, he is not criminally [592]*592responsible. “If,” said Chief Justice Dillon, “by the observation and concurrent testimony of medical men who make the study of insanity a specialty, it shall be definitely established to be true, that there is an unsound condition of the mind, that is, a diseased condition of the mind, in which, though a person abstractly knows that a given act is wrong, he is yet, by an insane impulse, that is, an impulse proceeding from a diseased intellect, irresistibly driven to commit it— the law must modify its ancient doctrines and recognize the truth, and give to this condition, when it is satisfactorily shown to exist, its exculpatory effect.”
In Hopps v. People, 31 Ill. 385, which was an indictment for murder, the same rule was recognized in different words. It was there held, that if, at the time of the killing, the defendant was not of sound mind, but affected with insanity, and such disease was the efficient cause of the act, operating to create an uncontrollable impulse so as to deprive the accused of the power of volition in the matter, and he would not have done the act but for the existence of such condition of mind, he ought to be acquitted.
In Bradley v. State, 31 Ind. 492, a like modification of the old rule was announced, the court observing: “Men, under the influence of disease, may know the right, and yet be powerless to resist the wrong. The well known exhibition of cunning by persons admitted to be insane, in the perpetration of an illegal act, would seem to indicate comprehension , of its evil nature and legal consequences, and yet the power of self-control being lost from disease, there can be no legal responsibility.”
In Harris v. State, 18 Tex. Ct. App. 287, s. c. 5 Atner. Or. Rep. (Gibbons), 357, this rule was applied to the disease known as kleptomania, which was defined as a species of insanity producing an uncontrollable propensity to steal,, and it was held, if clearly established by the evidence, to constitute a complete defense in a trial for theft.
The State v. Pike, 49 N. H. 399, was an indictment for murder, to which the plea of insanity was set up as a defense. It was held to be a question of fact for the jury to determine; (1), whether there was such a mental disease as dipsomania, which is an irresistible craving for alcoholic liquors, and (2), whether the act of killing was the product of such disease. One of the most instructive discussions on thé law of insanity, which can be found in legal literature, is the learned opinion of Mr. Justice Doe in that case.. — Lawson on Insanity, p. 311-312; 2 Lawson’s Or. Def. 311 et seq.
This ruling was followed by the same court in State r. Jones, 50 N. H. 369, s. c., 9 Amer. Rep. 242, which was an indict[593]*593ment charging the defendant with murdering his wife. The evidence tended to show that the defendant was insane, and killed her under the delusive belief that she had been guilty of adultery with one French. The rule in MeNaghten's case, was entirely repudiated, both on the subject of the right and wrong test, and that of delusions, and it was held that the defendant shonld be acquitted if be was at the time afflicted with a disease of the mind of such character as to take away the capacity to entertain a criminal intent, and that there could be no criminal intent imputed, if, as matter of fact, the evidence showed that the killing was the offspring or product of such disease.
Numerous other cases could be cited bearing on this .particular phase of the law, and supporting the above views with more or less clearness of statement. That some of these cases adopt the extreme view, and recognize moral insanity as a defense to crime, and others adopt a measure of proof for the establishment of insanity more liberal to the defendant than our own rule, can neither lessen their weight as authority, nor destroy the force of their logic. Many of them go further on each of these points than this court has done, and are, therefore, stronger authorities than they would otherwise be in support of oúr views. — Kriel v. Com. 5 Bush. (Ky.), 362; Smith v. Com. 1 Duv. (Ky.), 224; Dejarnette v. Com., 75 Va. 867 ; Coyle v. Com., 100 Penn. St. 573 ; Cunningham v. State, 56 Miss. 269 ; Com. v. Rogers, 7 Metc. 500 ; State v. Johnson, 40 Conn. 136; Anderson v. State, 43 Conn. 514, 525; Buswell on Ins. § 439 et seg.; State v. Mc Whorter, 46 Iowa 88.
The law of Scotland is in accord with the English law on this subject, as might well be expected. The criminal Code of Germany., however, contains the following provision, which is said to have been the formulated result of a very able discussion both by the physicians and lawyers of that conntry. “There is no criminal act when the actor at the time of the offense is in a state of unconsciousness, or morbid disturbance of the mind, through which the free determination of his will is excluded.” — Encyc. Brit. (9th ed.), Yol. 9, p. 112; citing Crim. Code of Germany (§51, II. G. B.)
The Code of France provides : “There can be no crime or offense if the accused was in a state of madness at the time of the act.” For some time the French tribunals were inclined to interpret this law in such a manner as to follow in substance the law of Eugland. But that construction has been abandoned. and the modern view of the medical profession is now adopted in that country,
It is no satisfactory objection to say that the rule above an[594]*594nonneed by us is of difficult application. The rule in MeFaghten’s ease, stijpra, is equally obnoxious to a like criticism. The difficulty does not lie in the rule, but is inherent in the subject of insanity itself. The practical trouble is for the courts to determine in what particular cases the party on trial is to be transferred from the category of sane to that of insane criminals— where, in other words, the border line of punishability is adjudged to be passed. But, as has been said in reference to an every day fact of nature, no one can say where twilight ends or begins, but there is am pie distinction nevertheless between day and night. We think we can safely rely in this matter upon the intelligence of our juries, guided by the testimony of men who have practically made a study of the disease of insanity ; and enlightened by a conscientious desire, on the one hand, to enfore the criminal laws of the land, and on the other, not to deal harshly with any unfortunate victim of a diseased mind, acting without the light of reason, or the power of volition.
Several rulings of the court, including especially the one given ex mero motu, and the one numbered five, were in conflict with this view, and for these errors the judgment must be reversed. |The charges requested by defendant were all objectionable on various grounds. Some of them were imperfect statements of the rules above announced ; some were argumentative, and others were misleading by reason of ignoring one or more of the essentials of criminal irresponsibility, as explained in the foregoing opinion.
It is almost needless to add that where one does not act under the duress of a diseased mind, or insane delusion, but from motives of anger, revenge or other passion, he can not claim to be shielded from punishment for crime on the ground of insanity. Insanity proper, is more or less a mental derangement, coexisting often, it is true, with a disturbance of the emotions, affections and other moral powers. A mere moral, or emotional insanity, so-called, unconnected with disease of the mind, or irresistible impulse resulting from mere moral obliquity, or wicked propensities and habits, is not recognized as a defense to crime in our courts. — 1 Whar. Cr. Law (9th ed.), § 46; Boswell v. State, 63 Ala. 307, 35 Amer. Rep. 20; Ford v. State, 71 Ala. 385.
The charges refused by the court raise the question as to how far one acting under the influence of an insane delusion is to be exempted from criminal accountability. The evidence tended to show that one of the defendants, Mrs. Nancy <1. Parsons, acted under the influence of an insane delusion that the deceased, whom she assisted in killing, possessed supernatural power to afflict her with disease and to take her life by [595]*595some “supernatural trick:” that by means of such power the deceased had caused defendant to be in bad health for a long time, and that she acted under the belief that she was in great danger of the loss of her life from the conduct of deceased operating by means of such supernatural power.
The rule in McNaghten's case, as decided by the English judges, and supposed to have been adopted by the court, is that the defense of insane delusion can be allowed to prevail in a criminal case only when the imaginary state of facts would, if real, justify or excuse the act; or, in the language of the English judges themselves, the defendant “mustbe considered in the same situation as to responsibility, as if the facts with respect to which the delusion exists were real.” — Boswell's case, 63 Ala. 307. It is apparent, from what we have said, that this rule can not be correct as applied to all cases of this nature, even limiting it as done by the English judges to cases where one “labors under partial delusion, and is not in other respects insane.” — McNaghten's case, 10 Cl. & P. 200; s. c., 2 Lawson’s Or. Def. 150. It holds a partially insane person as responsible as if he were entirely sane, and it ignores the possibility of crime being committed under the duress of an insane delusion, operating upon a human mind, the integrity of which is destroyed or impaired by disease, except, perhaps, in cases where the imaginary state of facts, if real, would excuse or justify the act done under their influence. — Fields’ Med. Leg. Guide, 101-104; Guy & F. on Forensic Med. 220. If the rale declared by the English judges be correct, it necessarily follows that the only possible instance of excusable homicide in cases of delusional insanity would be, where the delusion, if real, would have been such as to create, in the mind of a reasonable man, a just apprehension of imminent peril to life or limb. The personal fear, or- timid cowardice of the insane man, although created by disease acting through a prostrated nervous organization, would not excuse undue precipitation of action on his part. Nothing would justify assailing his supposed adversary except an overt act, or demonstration on the part of the latter, such as, if the imaginary facts were real, would under like circumstances, have justified a man perfectly sane in shooting or killing. If he dare fail to reason, on the supposed facts embodied in the delusion, as perfectly as a sane man could do on a like state of realities, he receives no mercy at the hands of the law. It exacts of him the last pound of flesh. It would follow also, under this rule, that the partially insane man, afflicted with delusions, would no more be excusable than a sane man would be, if, perchance, it was by his fault the difficulty was provoked, whether by word or deed; or, if, in fine, he may have been so negligent [596]*596as not to have declined combat when he could do so safely, without increasing his peril of life or limb. If this has been the law heretofore, it is time it should be so no longer. It is not only opposed to the known facts of modern medical science, but it is a hard and unjust rule to be applied to the unfortunate and providential victims of disease. It seems to be little less than inhumane, and its strict enforcement would probably transfer a large per centage of the inmates of our Insane Hospital from that institution to hard labor-in the mines, or the penitentiary. Its fallacy consists in the assumption that no other phase of delusion, proceeding from a diseased brain, can so destroy the volition of an insane person as to render him powerless to do what he knows to be right, or to avoid doing what he may know to be wrong. jThis inquiry, as we have said, and here repeat, is a question of fact for the determination of the jury in each particular case. It is not a matter of law to be decided by the courts. We think it sufficient if the insane delusion — -by which we mean the delusion proceeding from a diseased mind — sincerely exists at /the time of committing the alleged crime, and the dej fendant believing it to be real, is so influenced by it as either to render him incapable of perceiving the true nature and quality of the act done, by reason of the depravation of the reasoning faculty, or so subverts his will as to destroy his free agency by rendering him powerless to resist by reason of the duress of the disease. In such a case, in other words, there must exist either one of two conditions: (1), Such mental defect as to render the defendant unable to distinguish between right and and wrong in relation to the particular act; or (2), the overmastering of defendant’s will in consequence of the insane delusion under the influence of which he acts, produced by disease of the mind or brain. — Rex v. Hadfield, 37 How. St. Tr. 1282, s. c., 2 Lawson’s Cr. Def. 201; Roberts v. State, 3 Ga. 310; Com. v. Rogers, 7 Metc. 500; State v. Windsor, 5 Harr. 512; Buswell on Insan. §§ 434 and 440; Amer. Law Review, Vol. 4 (1869-70) pp. 236-252.
In conclusion of this branch of the subject, that we may not be misunderstood, we think it follows very clearly from what we have said, that the inquiries to be submitted to the jury then, in every criminal trial where the defense of insanity is interposed, are these:
1. Was the defendant at the time of the commission of the alleged crime, as matter of fact, afflicted with a disease of the mind, so as to be either idiotic, or otherwise insane?
2. If such be the case, did he know right from wrong as applied to the particular act in question? If he did not have such knowledge, he is not legally responsible.
[597]*5973. If he did have such knowledge, he may nevertheless not, be legally responsible if the two following conditions concur : ■
(1.) If, by reason of the duress of such mental disease, he had so far lost the power to choose between the right and wrong, and to avoid doing the act in qnestion, as that his free agency was at the time destroyed.
(2.) And if, at the same time, the alleged crime was so connected with such mental disease, in the relation of cause and effect, as to have been the product of it solely.
|?he rule announced in Boswell’s case, 63 Ala. 308, supra, as stafed in the fourth head note, is in conflict with the foregoing conclusions, and to that extent is declared incorrect, and is not supported by the opinion in that case otherwise than by dictum.
We adhere, however, to the rule declared by this court in Boswell’s case, supra, and followed in Ford’s case, 71 Ala. 385, holding, that when insanity is set up as a defense in a criminal case, it must be established to the satisfaction of the jury, by a preponderance of the evidence; and a reasonable doubt of the defendant’s sanity, raised by all the evidence, does not authorize an acquittal
There was no eri'or in overruling the objection taken by the defendants to the copy of the venire, or list of jurors, served on them. The act approved February 17,1885, (Acts 1884-85, pp. 181, 185, Sec. 10), regulating the organization of juries, applies to this case, and provides that “ the uames of the jurors so drawn’’ in accordance with section 10 of the act, together with the panel, of thirty-six jurors provided for by section 9, “shall constitute thevenhe,” from which the jurors to try capital cases shall be selected. — Acts 1884-85, pp. 185-186. The rule on this subject declared in Posey’s case, 73 Ala. 490, and Shelton’s case, lh. 5, has no application under this act. These cases construe section 4872 of the Code, which contains different language from the law here construed.
Under the rule announced in Ford v. State, 71 Ala. 385, 397, and authorities there cited, there was no error in excluding the proposed statement of Mrs. Nail. This testimony was defective in not being preceded more fully by the facts and circumstances upon which the opinion of the witness as to "the sanity of the accused was predicated, the witness not being an expert. — Rogers on Expert Test. § 6L )
The other rulings of the court need not be considered by us\ The judgment is reversed and the cause remanded. In the meanwhile the prisoners will be held in custody until discharged by due process of law.
Stone, C. J., dissents, in part, and expresses his views in -the following opinion: