State v. Esser

115 N.W.2d 505, 16 Wis. 2d 567

• Court: Wisconsin Supreme Court
• Decided: May 25, 1962
• Status: Published

Opinions

Fairchild, J.

The state requested an instruction defining insanity in terms of a mental condition rendering the defendant incapable of distinguishing between right and wrong.² The language requested was taken from headnotes 18, 19, and 20 of Oborn v. State.3 The state contends here:

(1) The right-wrong definition was part of the common law in force in the territory of Wisconsin at the time our constitution was adopted, and the constitution prohibits the courts from changing it. (2) This definition was in any event a common-law rule of criminal law in force here in 1955 when the legislature enacted the Criminal Code,⁴ and under sec. 939.10, Stats., it must remain in force and unchanged until modified by the legislature. (3) This definition ought to be adhered to upon its merits even if the court has power to modify it.

We conclude on the first and second points that this court may properly develop or adopt a new definition of the defense of insanity if it deems necessary in the interests of justice and in the light of present-day knowledge. The majority is not convinced, however, that there is need for a fundamentally different rule, and concludes that the courts in this state should define the defense of insanity in terms of inability, caused by mental illness, to understand the nature and quality of the alleged wrongful act or to distinguish right from wrong with respect to such act.

We then reach the question whether upon a review of the record in this case the state is entitled to a new trial because of the circuit court’s use of the definition in the draft code of the American Law Institute in its instructions to the jury, and we conclude that the error does not require reversal.

1. Does the constitution restrict the court’s power to develop common law? Sec. 13, art. XIV of the Wisconsin constitution provides:

“Such parts of the common law as are now in force in the territory of Wisconsin, not inconsistent with this constitution, shall be and continue part of the law of this state until altered or suspended by the legislature.”

It is conceded that there is no reported decision of a court in the territory of Wisconsin defining the defense of insanity. The state contends that the right-wrong rule was part of the common law of England before the American Revolution, was therefore in force in the territory of Wisconsin when our constitution was adopted, and therefore cannot be altered or suspended by the courts.

This argument raises several interesting questions of history and legal philosophy.⁵ The state’s argument assumes that the right-wrong test was a well-developed rule applied by the courts in England before 1776, and that any rule applied by the English courts as part of a'common law of that date must necessarily be a part of the common law of the territory in the absence of some modification by statute or decision of a court having jurisdiction over the area now comprising Wisconsin- between 1776 and 1836 when the territory of Wisconsin was created. We are unable to find either such certainty as to the defense of insanity in the law of England in the eighteenth century or such certainty that the reception of the common law of England as developed by 1776 into the territory of Wisconsin was as complete and exact as the state assumes.

a. Reception of English common law in Wisconsin. The area now in Wisconsin lay within the Northwest Territory. The Northwest Ordinance of 1787 ⁶ provided that the inhabitants shall always be entitled to the benefit “of judicial proceedings according to the course of the common law.” The governor and judges of the territory were empowered to adopt laws of the original states, and in 1795 they adopted a former Virginia statute declaring in force, “The common law of England, all statutes or acts of the British parliament made in aid of the common law, prior to the fourth year of the reign of King James the First [1607] (and which are of a general nature, not local to that kingdom) ...” ⁷ The validity of this adoption of the former Virginia statute is open to question.⁸

In 1810 the governor and judges of the territory of Michigan enacted a law providing that the acts of the parliament of England and the parliament of Great Britain, the custom of Paris or ancient French common law, ■ the laws and acts of the authorities of Canada, and the laws adopted in the Northwest Territory and the territory of Indiana shall be of no force within the territory of Michigan.⁹

In 1818 the area now in Wisconsin, which had earlier been a part of the territory of Indiana and then of the territory of Illinois, was attached to the territory of Michigan and made subject to its laws.¹⁰ In 1836 the territory of Wisconsin was created and the laws of the territory of Michigan continued in force.¹¹ In 1839 the legislature of the territory of Wisconsin repealed the acts of the territory of Michigan except that such repeal was not to revive other acts, and provided that none of the statutes of Great Britain shall be considered the law of the territory.¹²

In 1864, sixteen years after the adoption of our constitution, this court concluded “that when our territorial legislature and the framers of our constitution recognized the existence here of the common law, they must be held to have had reference to that law as it existed, modified and amended by English statutes passed prior to the Revolution.” ¹³ The opinion makes no reference to the legislative history which we have outlined except that a quotation from an Iowa decision includes a statement that the Ordinance of 1787 made common law the law of the Northwest Territory. Principally the Coburn decision was based upon the proposition that the existence - of common law had been assumed from the beginning of the territory and that a void in the legal system would otherwise exist. Decisions similarly based were cited from Michigan ¹⁴ and Iowa.¹⁵ , ¹⁶

It is clear that there were some English common-law rules which did not become parts of the common law in American jurisdictions. Courts have generally decided that particular English rules were not to be applied locally if deemed unsuitable to local conditions or out of harmony with local institutions.¹⁷

If, however, Coburn v. Harvey ¹⁸ (and that decision was but sixteen years after the adoption of our constitution) stands for the proposition that a rule of English common law developed and applied by the English courts prior to 1776 is to be deemed to have been in force in the territory of Wisconsin, in the absence of statutory change or determination of unsuitability to the territory, we are unable to find that the right-wrong definition of the defense of insanity had reached that stage of development in England by that year.

b. Defense of insanity in England prior to 1776. The statement of Chief Justice Tindal to the House of Lords, usually referred to as the M’Naghten rule, was made in 1843.¹⁹

Undoubtedly the views expressed had been widely held and applied by' the judges before that year, but it does not follow that they had been crystallized sixty-seven years earlier. The state cites 1 William Hawkins, A Treatise of the Pleas of the Crown, p. 1, first published in the period 1716 to 1721. While the author makes reference to “those who are under a natural disability of distinguishing between good and evil” as not being punishable, he also says, “The guilt of offending against any law whatsoever, necessarily supposing a wilful disobedience, can never justly be imputed to those who are either incapable of understanding it, or of conforming themselves to it.” The latter sentence suggests a broader concept than the right-wrong definition. The report of Arnold’s Case ²⁰ shows that the court charged the jury that, “If he was under the visitation of God, and could not distinguish between good and evil, and did not know what he did, though he committed the greatest offense, yet he could not be guilty of any offense against any law whatsoever” and further, that the jury was to consider whether the condition of the defendant “doth shew a man, who knew what he was doing, and was able to distinguish whether he was doing good or evil, and understood what he did.”

Dalton, The Country Justice, published in 1746, ch. 147, p. 334, states that, “If one that is Non compos mentis, or an ideot, kill a Man, this is no Felony, for they have not Knowledge of Good and Evil, nor can have a felonious Intent, nor a Will or Mind to do Harm

In Earl Ferrers’ Case ²¹ it is stated:

“My lords, the question therefore must be asked: Is the noble prisoner at the bar to be acquitted from the guilt of murder, on account of insanity? It is not pretended to be a constant general insanity. Was he under the power of it, at the time of the offense committed? Could he, did he, at that time, distinguish between good and evil?”

Notwithstanding the suggestions of the right-wrong test contained in the above quotations, Professor Holdsworth ²² indicates that although insanity was well established as a defense by the seventeenth century, the question of the quality or degree of insanity which would exempt the defendant from criminal liability was not settled until 1800 or later.

“No part of the criminal law is so fluid as this, largely because it is a question partly belonging to legal and partly to medical science; and because the latter science has, as medical knowledge advances or the fashion in medical theory changes, adopted very variable views on this matter. . . .

“ ‘At one time a view prevailed that no lunatic ought to escape punishment unless he were so totally deprived of understanding and memory as to be as ignorant of what he was doing as a wild beast. But, ever since the epoch-making speech of Erskine in defense of Hadfield (in the year 1800), a view at once more rational and humane has prevailed, which bases the test upon the presence or absence of the faculty of distinguishing right from wrong.’ Later, a still more-precise test was evolved. Did the accused know the nature of the act which he was doing, and, if he did know it, did he know it was wrong? If so, and if the act was contrary to law, he is punishable.”

Sir James Stephen,²³ writing in 1883, appears to have thought that notwithstanding the M’Naghten answers, mental disease might still be a defense if it prevented the accused from controlling his own conduct, unless the absence of the power of control has been produced by his own default. He wrote:

“I cannot help feeling however, and I know that some of the most distinguished judges on the bench have been of the same opinion, that the authority of the answers is questionable, and it appears to me that when carefully considered they leave untouched the most-difficult questions connected with the subject, and lay down propositions liable to be misunderstood, though they might, and I think ought to, be construed in a way which would dispose satisfactorily of all cases whatever.”

c. 'Cognate common-law definitions of insanity. Six states have common-law antecedents similar to those of Wisconsin, their areas at some time having been within either the Northwest Territory or the territory of Wisconsin. Except, apparently, for Minnesota, the courts of each of them at some period in the nineteenth century followed a definition of insanity broader than the right-wrong definition.²⁴

d. Early Wisconsin decisions on defense of insanity. Oborn v. State ²⁵ upon which the state relies, and in which this court unequivocally approved the right-wrong element of the definition of insanity and excluded from the definition a mental condition which impairs will power but does not render the accused unable to know the wrongfulness of his act, was decided in 1910. It is apparent from the discussion there of earlier Wisconsin cases that circuit courts in this state had at times instructed juries that the defense of insanity “may exist if, though the person be fully conscious of the wrong and its punishable character, he, because of a perverted mind, is moved by an uncontrollable impulse.” ²⁶

In a case in 1899 ²⁷ a defendant challenged a portion of the instructions which defined insanity in terms of incapacity to distinguish between right and wrong, claiming that the defense may also consist of loss of will so that the conduct is beyond the defendant’s control. This court pointed out that the circuit court had instructed the jury that the loss by disease of either the cognitive or the conative power was sufficient to constitute the defense. It was said, therefore, to be unnecessary to pass on the question whether the right-wrong definition could properly stand alone.

These cases make it seem improbable that the right-wrong definition as an exclusive test had been a well-recognized rule since territorial days.

e. Significance of sec. 13, art. XIV, Wis. Const. Quite aside from the difficulty of determining the definition of the defense of insanity as developed in English courts before 1776, or in the territory of Wisconsin by 1848, is the more-fundamental question whether sec. 13, art. XIV, Wis. Const., prohibited judicial development of rules or principles as part of the common law in the light of advances in knowledge and newly emerging conditions of society.

Art. XIV is the last article of the constitution and is entitled “Schedule.” Most of its fifteen sections deal with problems which would arise in the course of adoption of the constitution and transition from a territory, under an organized government, to a state in which it would be necessary to organize a new government under the constitution. Several of the sections, such as those providing for holding over by certain officers, procedure for ratification, and original legislative districts, were of obviously temporary significance. The function of a schedule is to provide for the transition from one form of government to another until there can be an adjustment to the working of the new constitution.²⁸

“. . . the general rule is that a provision in the schedule inconsistent with one embodied in the constitution itself must yield to the latter . . .” ²⁹

Sec. 2, art. VII, Wis. Const., provides in part:

“The judicial power of this state, both as to matters of law and equity, shall be vested in a supreme court, circuit courts, courts of probate, and in justices of the peace . . .”

Just as common-law principles and rules have been recognized or developed in part through the judicial process, so the further adaptation and development of them must be part of the judicial power. The court may modify the common law, adopting such of its principles as are applicable and rejecting such others as are inapplicable.³⁰ As stated many years ago by Mr. Justice Cardqzo: ³¹

“But I am ready to concede that the rule of adherence to precedent, though it ought not to be abandoned, ought to be in some degree relaxed. I think that when a rule, after it has been duly tested by experience,' has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment. We have had to do this sometimes in the field of constitutional law. Perhaps we should do so oftener in fields of private law where considerations of social utility are not so aggressive and insistent. There should be greater readiness to abandon an untenable position when the rule to be discarded may not reasonably be supposed to have determined the conduct of the litigants, and particularly when in its origin it was the product of institutions or conditions which have gained a new significance or development with the progress of the years. In such circumstances, the words of Wheeler, J., in Dwy v. Connecticut Co. 89 Conn. 74, 99, express the tone and temper in which problems should be met: ‘That court best serves the law which recognizes that the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another generation badly, and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society, and no considerable property rights have become, vested in reliance upon the old rule. It is thus great writers upon the common law have discovered the source and method of its growth, and in its growth found its health and life. It is not and it should not be stationary. Change of this character should not be left to the legislature.’ If judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors.”

“The common law is not a codification of exact or inflexible rules for human conduct, for the redress of injuries, or for protection against wrongs; on the contrary, it is the embodiment of broad and comprehensive unwritten principles, inspired by natural reason and an innate sense of justice, and adopted by common consent for the regulation and government of the affairs of men. Its development has been determined by the social needs of the community which it serves. In other words, the common law is the legal embodiment of practical sense. It is a comprehensive enumeration of principles sufficiently elastic to meet the social development of the people. Its guiding star has always been the rule of right and wrong, and in this country its principles demonstrate that there is in fact, as well as in theory, a remedy for all wrongs. The capacity of common law for growth and adaptation to new conditions is one of its most-admirable features. It is constantly expanding and developing in keeping with advancing civilization and the new conditions and progress of society and adapting itself to the gradual change of trade, commerce, arts, inventions, and the needs of the country. Whenever an old rule is found unsuited to present conditions or unsound, it should be set aside and a rule declared which is in harmony with those conditions and meets the demands of justice.” ³²

If sec. 13, art. XIV, Wis. Const., be construed as prohibiting modification of common-law rules by the courts, it would be a limitation by a schedule provision of the grant of judicial power not so limited in the body of the constitution.

Several courts have construed statutory and constitutional provisions adopting English* common law as adopting the principles from which the rules and decisions of the English courts arose but not necessarily the rules and decisions themselves.³³

Although a number of decisions of this court have relied upon sec. 13, art. XIV, Wis. Const., as a reason for applying' a particular doctrine of the common law ³⁴ and have thus exemplified the doctrine that established common-law rules will be followed unless after thorough consideration the court is convinced that new circumstances and needs of our society require a change,³⁵ these decisions do not commit this court to retention of every common-law rule developed before 1776 or 1848.

We recently said:

“In any event, we cannot adopt the view that sec. 13, art. XIV of our constitution prohibited this court from now adopting common-law principles or of changing them. Inherent in the common law is a dynamic principle which allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from ápplying principles of common law to new situations as the need arose.” ³⁶

We conclude that the function of sec. 13, art. XIV, Wis. Const., was to provide for the continuity of the common law into the legal system of the state; expressly made subject to legislative change (in as drastic degree within the proper scope of legislative power as the legislature might see fit) but impliedly subject, because of the historical course of the development of the common law, to the process of continuing evolution under the judicial power.

2. Statutory pozver of the court to develop rule of insanity. Sec. 939.10, Stats., provides:

“Common-law crimes are abolished. The common-law rules of criminal law not in conflict with the Criminal Code are preserved.”

The state contends, in effect, that the quoted section incorporates the Oborn rule into the code as if expressly set forth. The 1953 draft of the Criminal Code would have done so. Proposed sec. 339.41, Stats., provided:

“Mental disease or mental deficiency is a defense only if such condition renders the actor incapable of distinguishing between right and wrong in regard to the alleged criminal act at the time the act is committed.”

This provision was deleted from the 1955 draft of the Criminal Code, subsequently enacted by the legislature, because of dissatisfaction with the right-wrong test among the drafters.³⁷

Comparing the word “preserved” with “abolished” it appears that it was used in order to make it clear that existing common-law rules were not abolished, although common-law crimes were.

As stated by one author,³⁸

“If we value this process of growth as highly as I have urged that we ought, then we should always be reluctant to conclude that the legislature, in relation to any matter, has tried to paralyze the process. We should welcome a doctrine which says that the legislature can do this, if it can do it all, not by silence but only by unmistakable words. Only by adherence to such a doctrine can the resources of the judicial process for the infusion of reason into the law be fully utilized.”

The drafters of the code might have said that common-law rules not in conflict with the code are to be applied without change. We do not interpret the words used as having the same meaning.

3. What definition of the defense of insanity shoidd be given the jury? When a mentally ill person engages in offensive conduct made punishable by law, society is faced with the question whether at the time of engaging in the offensive conduct the accused was dominated or affected by the mental illness to so substantial a degree that society cannot, in good conscience, hold him responsible for the conduct as a crime, i.e., punish him. The legislature and the judiciary, by making general rules, and the jury by its verdict in a specific case must, in combination, provide the answer. The legislature might, but has not, set a standard degree of relationship between the mental illness and the offensive conduct, so that where a relationship of that degree or closer is found by a jury, the accused is held irresponsible, but where a more-distant relationship is found, he is not. On the other hand, the legislature and courts might avowedly place the entire burden on the jury, (where, by reason of the nonreviewability of jury determinations of fact, it really rests anyway). Under the latter method, the jury would decide this ultimate question in each case: Whether defendant’s mental illness dominated or affected his conduct to so great an extent that it would be unjust to punish him. Putting this question to the jury is substantially the preferred recommendation of the British Royal Commission on Capital Punishment:³⁹ “To leave the jury to determine whether at the time of the act the accused was suffering from disease of the mind (or mental deficiency) to such a degree that he ought not to be held responsible.”

Almost universally, however, the courts provide a standard by which the jury is instructed to measure whether the degree of relationship between the mental illness of the accused and his offensive conduct is sufficient to relieve him from responsibility. We refer to this standard as the definition of the defense of insanity. It is not a definition of mental illness or medical insanity, but a definition of the defense, a legal and not a medical concept.

There are three types of competing definitions: (1) M’Naghten, or right-wrong, stated in terms of loss of capacity to know the nature and quality of one’s acts or to know right from wrong, or distinguish between them. It is immaterial whether there has also been loss of power to control one’s conduct. It is assumed that one does not really lose power of self-control unless one has also lost power to know the nature and quality of one’s acts or to distinguish between right and wrong. (2) Definitions under which inability to know the nature and quality of one’s acts or to distinguish between right and wrong constitutes a defense, but loss of power of self-control, even if standing alone is also a defense. The so-called irresistible-impulse modification of M’Naghten falls in this class, as does also the proposed American Law Institute definition. The latter requires an impairment of one capacity or the other, but not total loss of either.⁴⁰ (3) The Durham⁴¹ or New Hampshire ⁴² definition. “An accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.” This definition comes close to leaving the ultimate question to the jury and, in a sense, is not a standard.

Before discussing the merits of the competing definitions, we deem it advisable to note several of the rules which supply some of the context in which the defense of insanity operates in this state. We think these are of some importance in considering the respective definitions.

One of these matters is the burden of proof on the special issue of insanity.

In England, the defendant has the burden of proving insanity. Under the original statement of the M’Naghten rule, the elements of the defense “must be clearly proved.” ⁴³ The extent of the burden has been relaxed so that it is not “higher than that which rests on a party in civil proceedings.” ⁴⁴

The defendant has the burden of proof on the issue in almost half the states of the United States.⁴⁵ In about the same number of states, including Wisconsin, the District of Columbia, and the courts of the United States, the burden is on the prosecution to establish responsibility beyond a reasonable doubt. In Wisconsin this burden is imposed on the state if there is evidence which raises a reasonable doubt of defendant’s sanity. In the early drafts of the Model Penal Code⁴⁶ an alternative proposal would have placed the burden on the defendant, but this was eliminated at the 1955 meeting of the Institute.

Our statute provides: ⁴⁷

“(1) . . . if the jury finds that the defendant was insane or feebleminded or that there is reasonable doubt of his sanity or mental responsibility at the time of the commission of the alleged crime, they shall find the defendant not guilty because insane or feebleminded.

“(2) The presumption of the defendant’s sanity and mental normality at the time he committed the alleged crime shall prevail on the trial of the special issue unless the evidence creates in the minds of the jury reasonable doubt of his sanity or mental responsibility at said time.”

Thus the jury need not be satisfied that the elements required by the definition of the defense are present in fact. A defendant succeeds if he is able to raise a reasonable doubt that they may be present. This seems to the majority of the court to be an important consideration in deciding whether to adopt a more-liberal definition than M’Naghten. We are not at all certain of the relevant scientific truths or principles. If a defendant had the burden of proving that his mental illness rendered his conduct virtually involuntary, notwithstanding his full understanding of the nature, quality, and wrongfulness of his acts, then, if successful, he might justly be found insane and irresponsible. But because there is so much room for doubt in the nature of the matter, we are not inclined to deem it just to acquit him because he succeeds merely in raising a reasonable doubt of his capacity to control his acts. Conversely, in any case where a defendant is able to convince a jury that his mental illness totally or substantially deprives him of power to control his conduct, it seems very probable that such showing will generate in the minds of the jurors a reasonable doubt of his capacity to understand the nature and quality of his acts or to distinguish right from wrong.⁴⁸ And under our law, the jury is instructed to return a verdict of insanity if it entertains such reasonable doubt.

It seems to the majority of this court that a much-more-persuasive argument could be made for liberalizing the definition of the defense of insanity in a state where the defendant has the ultimate burden of proof on this issue.

A second consideration arises from the consequences of conviction. The defense, of insanity is most' frequently discussed in connection with murder cases, and apparently is most frequently interposed in such cases. Wisconsin does not have a death penalty for any crime, and one who is sentenced to life imprisonment becomes eligible for parole in a fraction more than eleven years. Although these facts would not justify maintaining a particular definition of insanity if scientifically unsupportable, they doubtless color our evaluation of the perplexing problems somewhat differently from that in a jurisdiction where a miscarriage of justice may result in death of the accused.

A third consideration is the need for care and treatment of the mentally ill. One object of our statutes is that one accused or convicted of crime who needs hospital care because of mental illness should have it as long as he needs it and until it is safe for society to have him restored to freedom. If found not guilty because insane, he is committed to a hospital. He is not to be discharged unless the court, in addition to finding him sane, also finds that he is not likely to have a recurrence of insanity as will result in acts which but for insanity would be crimes.⁴⁹

On the other hand one who has been convicted and imprisoned, and then found mentally ill, may be transferred by the department of public welfare to a state hospital, and when his prison term is about -to expire, a court may commit him to the hospital thereafter if his mental illness continues.⁶⁰

Males are cared for in central state hospital. We are informed that of the total number of patients on March 31, 1961, (346), 39 percent were committed due to inability to stand trial, 2.6 percent by reason of acquittal on a plea of insanity, 17.9 percent by transfer from prison, and 9.9 percent by commitment after expiration of sentence. We do not know how many of the 27.8 percent who reached the hospital via conviction and subsequent transfer from the prison were convicted after a plea of insanity, nor how many of them might have been found not guilty because insane if a different definition of insanity had prevailed. Whatever the fact in that respect, the figures do show that a substantial number of prisoners are hospitalized for mental illness. A study of these cases would reveal whether there was a real question in any substantial number of cases whether it was just to hold the individuals responsible for their offenses, and might be quite persuasive in deciding whether a broader definition of the defense of insanity ought to be adopted.

It should be noted that the legislature has adopted a policy with respect to treatment for persons convicted of sex crimes.⁵¹ These include rape and other specified sex crimes and any other crime except homicide or attempted homicide if the court finds that the defendant was probably directly motivated by a desire for sexual excitement in the commission of the crime. The department of public welfare examines the defendant after conviction. If it recommends treatment for mental or physical aberrations, the court must either place him on probation, conditioned on his receiving treatment, or commit him to the department, which may, under certain circumstances, retain control indefinitely. This enactment suggests a legislative policy that persons with this type of mental aberration are to be held responsible, and convicted, but that corrective treatment is to be provided.

We have gained the impression that a large measure of the criticism directed at the M’Naghten definition stems from psychiatrists who do not feel able, conscientiously, to testify in terms of destruction or impairment of capacity to distinguish right from wrong. “To modern psychiatrists, in-tellection is only one aspect of the mental process, inextricably interwoven with others to make up the whole personality.” ⁵²

There is considerable pressure on the psychiatrist to testify in terms of right-wrong because under the M’Naghten definition that is the ultimate question, and if a psychiatrist does so when he does not consider such testimony within legitimate scientific bounds, he is actually expressing an opinion as to whether the accused ought to be held responsible, basically the ultimate question to be resolved in terms of general policy by the legislature and the courts and in respect to the particular case, by the jury.

Dr. Manfred S. Guttmacher, chief medical officer of the supreme bench of Baltimore, calling attention to this problem, has stated:

“It seems to me that all that should be expected of the psychiatrist is the following:

“1. A statement as to whether the defendant is suffering from a definite and generally recognized mental disorder and why and how this conclusion was reached.

“2. If it has been asserted that the defendant suffered from a mental disorder, its name and its chief characteristics and symptoms, with particular emphasis on its effect on an individual’s judgment, social behavior, and self-control, should be given.

“3. There should then follow a statement of the way and degree in which the malady has affected the particular defendant’s behavior, especially in regard to his judgment, social behavior, and self-control.

“4. He should then be asked whether the alleged criminal act was, in his opinion, a product of the mental disorder.” ⁵³

We agree that the psychiatrist should not be required to go further than as described in points 1, 2, and 3 just quoted. Point 4, it seems to us, is really a part of point 3. We do not say that a qualified expert should not be permitted to state his opinion of the effect of defendant’s mental illness on his capacity to distinguish right from wrong.⁵⁴ But neither should his opinion nor the observations on which he bases it, be excluded as of no probative value if he says he is unable to state it in terms of the accepted definition.

In State v. Carlson ⁵⁵ we said:

“Even under the right-wrong test, no evidence should be excluded which reasonably tends to show the mental condition of the defendant at the time of the offense.”

We reaffirm that statement. We are of the opinion that the jury will be best able to perform its function in dealing with this perplexing question if it is given all the information that qualified experts are able to give, even if such information does not fit nicely into the definition which the law has codified. For we are much impressed by the probability that no general standard can be devised that will satisfactorily •fit all cases.

“Although the M’Naghten rules are phrased in terms of cognition, they are generally interpreted broadly by the courts, with the result that all psychiatric evidence relevant to the defendant’s mental condition is admitted.” ⁵⁶

In a very recent case the supreme court of Alaska, in adhering to the M’Naghten definition, stressed the importance of liberality in receiving expert testimony as follows:

“We believe that it will work satisfactorily in practice, particularly where the expert witnesses are given wide latitude in describing their findings in their own terms; where the jury is given, so far as relevant and the rules of evidence will allow, the picture of the whole man.” ⁵⁷

We do not attempt to thread our way through all the criticisms directed at the several definitions of the defense of insanity. Some of the points which we have considered in making an evaluation are as follows:

M’Naghten: If strictly and literally applied (particularly if stated solely in terms of right-wrong, as in Oborn) some defendants would probably be convicted although their moral responsibility for their offensive conduct might be doubtful. It has been said that, “ ‘The M’Naghten rules work broad justice because we stretch them, and have postsentence prerogative means of modifying their application. ... It is when . . . the rules are rigidly applied (as they frequently are to homicides with sexual motivations) that their narrowness stands revealed.’ ” ⁵⁸

On the other hand the M’Naghten definition tends to reduce the probability that individuals with certain types of mental illness or abnormality will be found insane. “Neuroses have been termed ‘part reactions,’ because they do not involve a change in the whole personality, as do the psychoses. Nor is reality changed; the world appears to the neurotic essentially as it does to others.” ⁵⁹ The vague term “psychopath” is used, roughly “to refer to groups of mentally abnormal individuals who do not fit into the categories of neurosis, psychosis, or intellectual deficiency. . . . Anomalies in their character, emotions, moral sense, or sexual makeup render them incapable of conforming to social standards or of making satisfactory social adjustments. They are largely unable to put themselves in the other person’s position and assess the situation from that standpoint. They must have immediate gratification of wants even at the expense of long-term advantages.” ⁶⁰ Persons so afflicted are less likely to be found insane under the M’Naghten definition and more likely to be so found under the American Law Institute or Durham definitions. Although psychiatrists maintain that many of these people are unable to conform to society’s demands and ought to be treated as irresponsible,⁶¹ it seems probable that many individuals who are afflicted with exaggerated, sometimes warped, urges, may well be deterred from unlawful self-gratification by fear of detection and punishment. Society has an interest in prevention of crime which is served by such deterrence. The preference of courts for the M’Naghten definition is doubtless motivated by the thought that it best serves this interest.

From a pragmatic point of view, this court has had no recent experience to indicate that the use of the M’Naghten definition is resulting in injustice. Very few appeals involving the defense of insanity have been here in the last twenty years. We have reviewed the briefs and appendices in five cases ⁶² during that period which have come to our attention. None of them contains a persuasive showing by any standard that the defendant ought not to have been held responsible for his conduct.

The American Law Institute definition is less rigorous than M’Naghten, both because it permits a finding of insanity upon an additional ground, and because it requires a lack of substantial capacity and does not imply that a total lack of capacity is required. Yet it is subject to some of the same criticism from .the point of view of the psychiatrist as M’Naghten because it retains the idea that insanity is to be tested in terms of specified subdivisions or faculties of personality. It may well, literally applied, permit a finding of insanity in cases where moral responsibility would be doubtful, but where M’Naghten literally applied, would not. It seems to us that it would, however, tend to permit a finding of insanity in more of the cases of exaggerated and unresisted urges, and thus tend to impair society’s interest in the deterrent effect of punishment.

The Durham definition approaches the concept that if one’s offensive conduct is a manifestation or symptom of a mental illness, he should be cared for in a hospital, rather than being subjected to punishment in any form. Where any degree of relationship between mental illness and offensive conduct is discerned, any social interest in the deterrent effect of punishment is subordinated.

The Royal Commission recommendation has great appeal as an intellectual proposition because it does not commit the court to any of the debated theories, but permits a determination of each case by the jury upon consideration of the facts before it, using its own judgment of what is fair and just. But if it does not trammel the jury’s exercise of its function as the conscience of the community, by imposing an imperfect generalization upon it, neither does it give the jury any standard. The great majority of courts have considered it unwise to leave the jury without such guidance.

The Oborn ⁶³ statement of the M’Naghten definition virtually if not wholly eliminated the portion which permitted a finding of insanity if the accused is rendered incapable of understanding (knowing) the nature and quality of his act. As will be explained later, we are of the opinion that this element should be restored to the definition. Four members of the court, Mr. Chief Justice Broadfoot, Mr. Justice Brown, Mr. Justice Gordon, and the writer of this opinion deem that the M’Naghten definition, with the element just mentioned restored to it, should be used in Wisconsin. The writer, however, expresses the individual view that he would favor one of the more-liberal definitions if the burden of proof were on the defendant rather than on the state.

Three members of the court, Mr. Justice Currie, Mr. Justice Hallows, and Mr. Justice Dieterich would approve the instruction given by Judge Wilkie, based on the American Law Institute definition.⁶⁴

As heretofore stated ⁶⁵ the M’Naghten definition in one portion of the original statement was put as follows:

“. . . at the time of the committing of the act, the party accused 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 know it, that he did not know he was doing what was wrong.”

Courts have apparently considered that the requirement that defendant, to be excused, must be incapable of knowing the nature and quality of the act does not add anything to the requirement that he must be incapable of knowing right from wrong as to the act charged'.⁶⁶ This court so assumed in Oborn v. State ⁶⁷ and stated in Jessner v. State ⁶⁸ that “the two phrases express exactly the same thing, but in different language.” The supreme court of Alaska has recently held that it was not error to state the two phrases in the conjunctive.⁶⁹

In a sense it may be true that one cannot know that his act is right or wrong unless he can also know what the act is. If so, it would follow that it would be superfluous to specify that one must be able to know the nature and quality of his act in order to be found sane in addition to stating that he must be able to distinguish between right and wrong with respect to it.

We think, however, that including the former element (nature and quality) gives important emphasis to one element of the realization of the wrongfulness of an act. Suppose that one vaguely realizes that particular conduct is forbidden, but lacks real insight into the conduct. He may be furtive about such conduct, but not really be able to make a normal moral judgment about it. Our study of the record in this case leads us to believe that this proposition is important. Although defendant Esser realized very soon after the fatal shot, first that it would be advisable to hide the victim’s body, and later that he should report his act to the police, even referring to it as “murder,” yet the expert testimony tends to create a reasonable doubt that he could appreciate and evaluate his act at the time he did it. Although Esser’s conduct after the shooting suggests a knowledge that his acts had been wrong and therefore that he could distinguish right from wrong, the expert testimony describing his mental illness tends to show that at the time of the killing he did not understand the nature and quality of his acts and therefore could not distinguish right from wrong with respect to them.

We therefore approve the following definition of insanity for use by Wisconsin courts:

“The term ‘insanity’ in the law means such an abnormal condition of the mind, from any cause, as to render the defendant incapable of understanding the nature and quality of the alleged wrongful act, or incapable of distinguishing between right and wrong with respect to such act.”

The courts are not to instruct the jury as stated in Oborn, that the law does not recognize any form of insanity where there exists a capacity to distinguish right from wrong even though such insanity might render the afflicted one incapable of refraining from doing that which he recognizes as wrong. It seems to us that it is not wise, in view of the doubts in this perplexing field, to emphasize this negative proposition.

4. No reversible error under the facts of this case. Sec. 274.37, Stats., provides, in part:

“No judgment shall be reversed ... on the ground of misdirection of the jury, . . . unless in the opinion of the court . . . after an examination of the entire action, . . . it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse . . . the judgment ...”

This court has said:

“Errors committed in the course of a trial will not operate to disturb a judgment on appeal unless it appears pretty clearly that had they not occurred, the result might probably have been more favorable to the party complaining.” ⁷⁰

We have examined the record before us in order to determine, if possible, the likelihood that the jury, if it had been instructed in the form now approved, would still have held a reasonable doubt of Esser’s sanity.

Esser did not testify. Our knowledge of the event comes from the physical facts and the statements Esser made to the officers.

There was a bullet wound in Jerry’s back. The bullet had passed through his chest. There was another wound where a bullet had entered over the right temporal region and had gone through the skull and brain. Dr. Angevine, the pathologist, considered that the wound in the head was the most-probable cause of death; that the wound in the back would not have been immediately fatal, and that Jerry could have survived that wound with adequate medical attention; that the bullet in the back was the first one fired. There were three wounds in the upper chest made by a cutting instrument.

It appears that the evidence might give support to one of three general theories of what happened.

(1) Esser told the officers that he and Jerry went out in the woods to hunt with Esser’s .22-caliber rifle. While Esser was carrying the gun and Jerry was walking ahead, the gun went off accidentally. Jerry fell from the wound in his back. Esser got scared and shot Jerry in the head. He dragged the body into the brush, thinking he might be able to get away, smoked a cigarette, decided his plan would not work out and sought the officer in order to report the killing. Near the close of his transcribed statement before an assistant district attorney, Esser said he knew that the shot in the temple would be fatal and that he fired that shot in order to kill Jerry and conceal the accident. Esser was not asked about the cuts in Jerry’s chest and he volunteered no explanation.

This hunting-accident-followed-by-murder explanation seems improbable.

(2) One officer testified that Esser told him upon questioning at the scene of the killing that Esser had made immoral proposals to. Jerry or had attempted some immoral act, and that Jerry had said he was going to tell his mother. Esser said this in answer to a question whether an unnatural sex act or proposal was possibly the cause of the killing. The officer had, however, made no reference to this conversation in his notes or report and did not recall having told any other officer about it. Although he was present when Esser’s transcribed statement was taken no question was asked of Esser about this subject.

If one accepted the version supported by this testimony, one would conclude that both shots were deliberate for the understandable purpose of avoiding disclosure of improper advances made. If the jury believed the officer’s testimony, it seems improbable that it would have found Esser not guilty because insane. It does not readily appear that this matter would be affected one way or the other by the difference between the instruction given and the one which we now approve.

(3) A third possible analysis is that the two shots and perhaps the wounds on the chest all resulted from Esser’s mental illness as diagnosed and described in the testimony of the experts. That testimony apparently was accepted by the jury, at least to the extent of raising a reasonable doubt of Esser’s sanity. It then becomes important to consider the expert testimony in determining whether the verdict might probably have been different if the court had used the presently approved definition of insanity rather than the American Law Institute definition.

It was apparently the theory of the state that Esser was not insane at the time of the killing. He became insane as a result of the experience and recovered his sanity by the time he was returned from central state hospital for trial, almost four years after the killing.

The state called Dr. Schubert, superintendent of central state hospital. He testified that in November, 1956, the diagnosis of Esser’s illness was “schizophrenic reaction, chronic undifferentiated type.” He said that in general, the term “schizophrenia” or “schizophrenic reaction” “. . . is applied to an individual who has lost the ability to relate satisfactorily to his fellowmen. He has developed a world of his own in which he exists.” He testified that there are subclassifications of schizophrenia and that the term “undifferentiated” is used where the patient does not fit into the symptoms of any of the well-defined subclassifications.

Dr. Schubert testified in response to a hypothetical question based on facts in the Esser case that in his opinion an individual could become mentally ill as the result of the experience of killing another under such circumstances. In response to another hypothetical question, he said it was his opinion that the individual did not have a mental defect or disorder to such a degree that he could not appreciate criminality of his act, and it was his opinion that the individual could have conformed his behavior to what was expected of him. Although it was felt in August, 1960, that Esser met the test of sanity sufficiently to stand trial, he was still considered a dangerous individual.

The defense produced evidence of Esser’s background and early experiences. Among other facts, it appeared that when Esser was sixteen or seventeen and in high school, he was brought to the attention of a clinical psychologist on the staff of the Madison public schools. The psychologist considered him withdrawn and thought he might have profited by psychotherapy.

There was evidence that when Esser was thirteen or fourteen, a boy companion was alone with him at the Esser home. They were looking at magazines and there was no disagreement between them. The visiting boy was suddenly struck on the head with a hammer, presumably by Esser.

From 1950 to 1953, Esser served in the navy. In October, 1953, he was working with another seaman, had a sudden urge to strike him on the back of the head with a heavy wrench, and did so. A board of medichl inquiry diagnosed him as a schizoid personality, found him unfit for service, and recommended discharge.

There was expert testimony before the circuit court that certain tests in early 1961 indicated organic brain disease. A specimen of Esser’s cerebral spinal fluid was obtained by spinal tap. The pressure of the fluid was above normal and the protein level was well above normal. A doctor testified that the latter condition is usually indicative of some abnormal process, disease process, damage, or some abnormal organic condition in the brain or spinal cord. A pneumoencephalogram, and X ray revealing the outline of the chambers of the brain after substituting air for spinal fluid, was taken. The doctor testified that the X ray revealed an atrophy, of the left side of the brain; that the type of disease he described impairs the patient’s ability to distinguish reality and his ability to evaluate and control his behavior. Upon the basis of the results of a spinal tap made at central state hospital November 30, 1956, it was this doctor’s opinion that the disease existed at that date and was then of more than three months’ duration. An electroencephalogram (recording of electrical activity of the brain) showed a small amount of abnormality in the left temporal area and to a less extent in the right temporal area. The doctor who testified as to this test considered the result obtained insufficient for diagnosis and significant only in conjunction with other evidence.

Dr. Leigh Roberts, a psychiatrist at the University Hospitals in Madison, teacher of psychiatry at the University Medical School, and psychiatric consultant at Mendota state hospital, was called by the defense. He had interviewed Esser on a number of occasions, in December, 1960, and January, 1961, and was aware of the tests to which we have referred. It was his opinion that Esser has an organic brain disease which would impair his ability to see reality and to test reality, and would impair his ability to control his behavior; that the disease existed at the time of the tests in November, 1956, and that it was chronic at that time. He gave the same diagnosis as Dr. Schubert, the state’s expert, “schizophrenic reaction, chronic undifferentiated type.” It was his opinion that Esser was not able to appreciate the criminality of his conduct when he shot and stabbed Jerry Anderson October 28, 1956. An important portion of the doctor’s testimony follows:

“Q. Why do you in this case, what is the reason for diagnosing Gregory Esser to have been schizophrenic reaction, chronic undifferentiated type on October 28, 1956? A. I would consider at least four major categories of symptoms under the diagnosis of a schizophrenic reaction. One of these would be the ability to conform to reality, the ability to see reality, to test reality. A second major group of symptoms would fall under disturbed thinking. Another area would be disturbed feelings or emotions. A fourth major area would be disturbed or abnormal behavior. In my opinion there are prominent symptoms in each of these four areas which are easily evidenced in Mr. Esser.

“Q. Would you tell us what conditions are evidenced in Mr. Esser in those particular areas you have spoken of? A. I would attempt to illustrate each of these areas and some of the difficulty which he experiences in them. In the matter of his relationship with reality, his poor contact with reality, one of the manifestations is his lack of what would be called empathy. Empathy is the ability to know and to understand, to recognize another person’s feelings as if one were that person. Mr. Esser finds marked difficulty in doing that. Mr. Esser for the most part tends to see people much more as objects than he does as human beings and he actually does that in terms of himself as well as other people. This was readily evident in talking to him in his trying to explain what other people may have felt at different times; and he was quite at a loss to try and do this. He simply is not able to see and to understand the reactions of other people. He tends really to be blank in this kind of way. He tends not to experience, and it is also quite true for himself; this is part of what makes him appear guarded many times, in that he really does not know what kinds of things are going on within himself. As a result of this lack of empathy he tends to distort much of the world around him, the people around him, even the things around him. Another aspect of his poor contact with reality is his tendency to withdraw from people, so that he actually does not get in touch with other people. He cannot communicate readily with them. We have heard some of the other witnesses earlier talk about this very kind of thing in which he simply was unable to convey to them the kinds of things he was thinking and he was feeling or to sense in return the kinds of things that they were trying to tell him. A second major area of difficulty for him is his abnormal thinking. This is perhaps most easily demonstrated in his fantasy life. I talked a little this morning about some of this fantasy life as a child. This kind of fantasy has persisted from probably age thirteen or fourteen on up to the present time. It is still there. The only way in which it has changed and the change he dates to about late 1956, is that his fantasy at this time no longer includes harming people. It includes killing people. His fantasy at this time is not limited as it was earlier to the strangulation of little children, little boys. His fantasy at this time includes killing by a variety of means: Poisoning, drowning, strangulation, shooting, various ways in which he actually kills another person. This kind of fantasy does not center on any one particular person. The tendency still is for it to involve small children but it may be anyone whom he has seen. He may see a child on the street and that might be the object of his fantasy. He may see a child in the courtroom who might be the object of his fantasy. He also states that during the last four years since he has been at central state there has been some tendency for the frequency of his fantasy to be reduced; but even during the last few months in jail he has continued to have some of this fantasy life. When this is present in an adult when it is a means of escaping from the realistic world around him, then this is an evidence of abnormal thinking. A third major area is in the area of his emotions, his feelings and he demonstrates frequently inappropriate emotional response. He simply lacks the ability to have emotions freely in an unrestricted kind of way. They tend to be. shut out. They tend to be eliminated. They tend to be pushed down; so that many of his emotional responses do not conform to those of individuals who are around him. They don’t conform to the realistic world around him. They don’t necessarily conform to his own ideas. A fourth major area is in terms of irrational behavior. I think the incidents which have been cited involving injury to others is perhaps the. easiest way to see this kind of irrational behavior, behavior which for many of you would not be based on the usual kinds of motives that most of us would assume, behavior which results from inner conflict from what we would call his unconscious from the aspects of his personality of which he is not aware and yet the thoughts intrude into his awareness and the behavior results from them without his quite knowing why this has occurred and surely without other people knowing very well why this kind of behavior should result in a given situation. I think these are major ways of trying to explain why I consider that he has a schizophrenic reaction. In terms of the chronic undifferentiated part of it, it is evident, on talking to him, on listening to many other people who have known him and talked to him and going back over many records on reading his letters' during the time that he was in military service, on talking with his parents, all of this points to the existence of this kind of condition for many years. It’s difficult to name a specific time at which time began; but certainly the emotional disturbance and a diagnosis of a schizophrenic kind of reaction date back many years to make it chronic. The term undifferentiated as I said before, means the symptoms do not fall into one of these four major subgroups of a schizophrenic reaction. He is not predominantly paranoid, catatonic, hebephrenic, or have the manifestations of a simple type of schizophrenic reaction. As a result of this the label which is given is a chronic undifferentiated schizophrenic reaction.”

As stated earlier in this opinion, we consider it important to include in the definition of insanity the element of inability to understand the nature and quality of the alleged wrongful act, and the importance of this element seems to us to be illustrated by the testimony just related.

Of course it was for the jury to weigh the testimony of the experts. We do not hold as a matter of law that the record in this case raised a reasonable doubt of sanity. The jury must, however, have believed and given weight to the expert testimony referred to. If given weight, such testimony tends to raise a substantial doubt whether Esser had the capacity to understand the nature and quality of the acts which brought about the death of Jerry Anderson. We conclude that it is improbable that the jury would have returned a different verdict if the court had defined insanity in the manner approved in this opinion.

By the Court. — Judgment affirmed.

2 “The term ‘insanity,’ in the law, means such an abnormal condition of the mind, from any cause, as to render the afflicted one incapable of distinguishing between right and wrong in the given instance, and so rendering him unconscious of the punishable character of his act. A person is not immune from punishment for a wrongful act if he has, at the time of perpetrating it, capacity to distinguish right from wrong, in respect thereto. If you determine that this defendant was, at the time of the crime here charged, legally sane, then he is responsible for his acts. Therefore, if this defendant, Gregory Esser, was in your opinion capable of distinguishing right from wrong at the time of Jerry Anderson’s death, then you must not answer the question on the verdict relating to sanity, but must instead proceed to find said defendant either guilty or not guilty of first-degree murder, deliberating thereon in accordance with the other instructions which I have given you in that area.

“With respect to the issue of defendant’s sanity, that is his legal sanity, I instruct you further that the law. does not recognize any form of insanity wherein there exists a capacity to distinguish right from wrong, even though such insanity might render the afflicted one incapable of refraining from doing that which he recognizes as' wrong. He who in the law can distinguish right from wrong must, at his own peril, choose rightly between them. Legal insanity to be a defense to a crime must be such a defect of the mind as to render one incapable of distinguishing right from wrong in the given instance

3 (1910), 143 Wis. 249, 126 N. W. 737.

4 Ch. 696, Laws of 1955, Title XLV, Stats.

5 For a description of the process of “reception” of the common law of England in American jurisdictions, see Hall, The Common Law: An Account of its Reception in the United States, 4 Vanderbilt Law Review (1951), 791.

6 United States Rev. Stats. (1878, 2d ed.), pp. 13, 15, 1 W. S. A., p. 736.

7 Laws of the Northwest Territory (1796), pp. 175, 176.

8 See Doe v. Gibson (1826), 1 & 2 Ohio Rep. 439, decided by an equally divided court; 1 Stats, of Ohio and of the Northwestern Territory (1833), edited by Salmon P. Chase (later chief justice of the United States), note at page 190.

9 1 Territorial Laws of Michigan, pp. 210, 900.

10 3 U.S. Stat., ch. LXVII, pp. 428-431, 1 W. S. A., p. 750.

11 5 U. S. Stat., ch. LIV, pp. 10-16, 1 W. S, A., p. 754.

12 The Statutes of the Territory of Wisconsin (1839), p. 404, secs. 1, 2, and p. 407, sec. 8. See also Webster v. Morris (1886), 66 Wis. 366, 376, footnote 1, 28 N. W. 353.

13 Coburn v. Harvey (1864), 18 Wis. 156 (*147), 162 (*153).

14 Lorman v. Benson (1860), 8 Mich. 18.

15 O’Ferrall v. Simplot (1857), 4 Iowa 381, 399.

16 See for discussion of the source of Wisconsin common law, 1 Powell, Real Property (1949), p. 241, sec. 73, and Page, Statutes in Derogation of Common Law: The Canon as an Analytical Tool, 1956 Wisconsin Law Review, 78, 79-89.

17 Hall, op. cit., supra, footnote 5, pp. 805-807; Coburn v. Harvey, supra, footnote 13, 160 (*151); McCall v. Chamberlain (1861), 13 Wis. 713 (*637), 717 (*640); Dodge v. Williams (1879), 46 Wis. 70, 93, 1 N. W. 92, 50 N. W. 1103; Huber v. Merkel (1903), 117 Wis. 355, 365, 94 N. W. 354; State ex rel. Rodd v. Verage (1922), 177 Wis. 295, 322, 187 N. W. 830.

18 Supra, footnote 13.

19 The material portion of the statement is as follows:

“And as these two questions appear to us to be more conveniently answered together, we have to submit our opinion to be, that the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that 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 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 know it, that he did not know he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused at the time of doing the act knew the difference between right and wrong: which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put generally and in the abstract, as when put with reference to the party’s knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction; whereas the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course, therefore, has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong: and this course we think is correct, accompanied with such observations and explanations as the circumstances of each particular case may require.” M’Naghten’s Case (1843), 10 Clark & F., *200, *210, *211, 8 Eng. Reprint 718.

20 (1724), 16 Howell’s State Trials, 695.

21 (1760), 19 Howell’s State Trials, 886, 947.

22 8 Holdsworth’s History of English Law (1926), 439, 440.

23 2 Stephen, Criminal Law of England (1883), ch. 19, pp. 149, 154.

24 State v. Thompson (1834), Wright’s Ohio Rep. 617, 622; Clark v. State (1843), 12 Ohio 483, 494, cited in Yankulov v. Bushong (1945), 80 Ohio App. 497, 77 N. E. (2d) 88, 91; Hopps v. State (1863), 31 Ill. 385, 391; State v. Felter (1868), 25 Iowa 67, 83, 84; People v. Finley (1878), 38 Mich. 482, 483, 484; Bradley v. State (1869), 31 Ind. 492.

25 Supra, footnote 3.

26 Supra, footnote 3, p. 269.

27 Butler v. State (1899), 102 Wis. 364, 366, 78 N. W. 590.

28 Black, Interpretation of Laws (2d ed.), p. 43, sec. 22; Arie v. State (1909), 23 Okla. 166, 100 Pac. 23; State ex rel. Attorney General v. Taylor (1864), 15 Ohio St. 137, 142; State ex rel. Aquamsi Land Co. v. Hostetter (1934), 336 Mo. 391, 400, 79 S. W. (2d) 463, 467; Commonwealth v. Harrison (1943), 54 Pa. (Dauph.) 395; see State ex rel. Dunning v. Giles (1849), 2 Pin. 166, 169.

29 State ex rel. Aquamsi Land Co. v. Hostetter, supra, footnote 28, p. 401.

30 11 Am. Jur., Common Law, p. 162, sec. 7.

31 The Nature of the Judicial Process, Adherence to Precedent, pp. 142, 150-152.

32 11 Am. Jur., Common Law, p. 154, sec. 2.

33 Ketelsen v. Stilz (1916), 184 Ind. 702, 111 N. E. 423; Hanriot v. Sherwood (1884), 82 Va. 1, 15; People v. Randolph (1855), 2 Parker’s Cr. Rep. (N. Y.) 174, 177.

34 Coburn v. Harvey, supra, footnote 13; Huber v. Merkel, supra, footnote 17; State ex rel. Mueller v. Thompson (1912), 149 Wis. 488, 493, 137 N. W. 20; In re Ernst (1923), 179 Wis. 646, 650, 192 N. W. 65; Allen v. State (1924), 183 Wis. 323, 331, 197 N. W. 808; McCoy v. Kenosha County (1928), 195 Wis. 273, 277, 218 N. W. 348 (sec. 13, art. XIV, Wis. Const., considered in determining scope of sec. 9, art. I) ; Schwanke v. Garlt (1935), 219 Wis. 367, 371, 263 N. W. 176 (dictum that if there had been a territorial common-law rule on this subject the court would have been bound by it); Estate of Budd (1960), 11 Wis. (2d) 248, 258, 105 N. W. (2d) 358.

35 Recently this court has declined to apply stare decisis in several cases, e.g., Haumschild v. Continental Casualty Co. (1959), 7 Wis. (2d) 130, 95 N. W. (2d) 814; Powers v. Allstate Ins. Co. (1960), 10 Wis. (2d) 78, 102 N. W. (2d) 393; Kojis v. Doctors Hospital (1961), 12 Wis. (2d) 367, 107 N. W. (2d) 131, 107 N. W. (2d) 292; McConville v. State Farm Mut. Automobile Ins. Co. (1962), 15 Wis. (2d) 374, 113 N. W. (2d) 14; Colson v. Rule (1962), 15 Wis. (2d) 387, 113 N. W. (2d) 21; and Bielski v. Schulze, ante, p. 1, 114 N. W. (2d) 105. The writer expresses individual regret that Schwenkhoff v. Farmers Mut. Automobile Ins. Co. (1959), 6 Wis. (2d) 44, 93 N. W. (2d) 867 (reaffirming parental immunity), is not in this list.

36 Bielski v. Schulze, supra, footnote 35, p. 11.

37 See Platz, 1956 Wisconsin Law Review, 350, 367, 368.

38 Hart, The Courts and Law Making — Comment, Legal Institutions Today and Tomorrow, Centennial Volume, Columbia Law School (1959), 47, 48.

39 (1949-1953), p. 116, par. 333.

40 The American Law Institute, Model Penal Code, Proposed Final Draft No. 1 (1961), p. 4, sec. 4.01:

“(1) 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 [wrongfulness] of his conduct or to conform his conduct to the requirements of law.

“(2) As used in this article, the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”

The instruction given by Judge Wilkie was adopted from these paragraphs, using “criminality” rather than “wrongfulness.” He added a paragraph adapted from the concurring opinion of Mr. Justice Hallows in Kwosek v. State (1960), 8 Wis. (2d) 640, 654, 100 N. W. (2d) 339, as follows:

“One who has the power in a given situation to choose between the doing or the not doing of an unlawful act and freely chooses to do the unlawful act must be held criminally responsible in our society. And, conversely, if such person did not have such volitional capacity because of its total or substantial destruction or of its inability to function freely in a given situation, and such incapacity was caused by and was the result of a mental disease or defect, such person is not criminally responsible for such act and is legally insane. However, in cases where the normal functioning of the will is affected temporarily because of the overpowering influence of passion or emotion which the person might have and ought to have controlled, such person is criminally responsible.”

41 Durham v. United States (D. C. Cir. 1954), 214 Fed. (2d) 862.

42 State v. Pike (1869), 49 N. H. 399.

43 Supra, footnote 19.

44 Supra, footnote 39, p. 81, par. 230.

45 See American Law Institute, Model Penal Code, Tentative Drafts 1, 2, 3, and 4, Comments, p. 193; Weihofen, Mental Disorder as a Criminal Defense (1954), p. 212. Recently. Alaska adhered to this rule. Chase v. State (Alaska 1962), 369 Pac. (2d) 997.

47 Sec. 957.11 (1), (2). Stats.

46 Supra, footnote 39, p. 6, sec. 4.03.

48 “The personality is seen as a fusion of functions and not a mere interrelation of separate faculties, . . . hence, there can be no serious impairment of one of these functions without serious impairment of the others.” Hall, Psychiatry and Criminal Responsibility, 65 Yale Law Journal (1956), 761, 775.

49 Sec. 957.11 (4), Stats.

60 Sec. 51.21 (3), Stats.

51 Sec. 959.15, Stats.

52 Weihofen, op. cit., footnote 45, p. 66.

53 The American Law Institute, Model Penal Code, Tentative Drafts Nos. 1, 2, 3, and 4, Appendix B, p. 178, sec. 4.01.

54 Weihofen, op. cit., footnote 45, p. 286.

55 (1958), 5 Wis. (2d) 595, 607, 93 N. W. (2d) 354.

56 Hall, supra, footnote 48, p. 774.

57 Chase v. State, supra, footnote 45, p. 1002.

58 Morris, Insanity and Responsibility, 13 Modern Law Review (1950), 372, 376, quoted in Weihofen, op. cit., footnote 45, pp. 67, 68.

59 Weihofen, op. cit., footnote 45, p. 17.

60 Weihofen, op. cit., footnote 45, p. 22.

61 Guttmacher, The Psychiatric Approach to Crime and Correction, 23 Law and Contemporary Problems (1958), 633, 639.

62 Simecek v. State (1943), 243 Wis. 439, 10 N. W. (2d) 161; Wilson v. State (1956), 273 Wis. 522, 78 N. W. (2d) 917; Zenou v. State (1958), 4 Wis. (2d) 655, 91 N. W. (2d) 208; State v. Carlson (1958), 5 Wis. (2d) 595, 93 N. W. (2d) 354; Kwosek v. State (1960), 8 Wis. (2d) 640, 100 N. W. (2d) 339.

⁶³

64 See concurring opinion, Kwosek v. State, supra, footnote 1.

65 Footnote 19.

66 Weihofen, op. cit., footnote 45, p. 73.

⁶⁷

68 (1930), 202 Wis. 184, 196, 231 N. W. 634.

69 Chase v. State, supra, footnote 45.

70 Holtz v. Fogarty (1955), 270 Wis. 647, 650, 72 N. W. (2d) 411.