Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-28

the individual from understanding the
consequences of his act, and the ex-
istence of delusion in regard to a
matter of fact which, If true, would
justify his act"
In People v Holm, 90 Calf. 12O, the
court, quoting from Baron Bramwell,
say: But If an influence be so pow
erful as to be Irresistible, so much
the more reason is there why we
should not withdraw any of the safe
guards tending to counteract il. There
are three powerful restraints exist
ing, all tending to the assistance Of
/ the person who is suffering under
such an influence-the restraint OF
religion, the restraint of conscience,
the restraint of law. But if the in
fluence itself be held to be a legal
excuse, rendering the crime dispun-
ishable, you at once withdraw a most
/ powerful restraint-that forbidding
and Furnishing its perpetuation'. We
must, therefore, return to the simple
/ question you have to determine-did
the prisoner know the nature of the
act he was doing; and did he know
he was doing what was wrong" In
conclusion the court say: Whatever
may be the abstract truth. the law
has never recognized an impulse as
uncomfortable which yet leaves the
reasoning powers-including the ca
pacity to appreciate the nature and
| quality of the particular act unaf-
fected by mental disease. No diff
ferent rule has been adopted by Amer
ican courts"
The power to discriminate between
right and wrong, as test of GRIM
inal responsibility, has been adopted
by large majority of the courts of
the United States, including Oregon:
State V. Murray, IL Or. 413; People
V. Holm, supra; Mackin V. State, SO
n. j. L. 495; State V. Miller, Ill Mo.
542; Ford V. State, 73 Miss. 1874; State
v Mcintosh, 80 S. C. 81; Wilcox v.
State "a Tenn. 106; Flanagan V. Peo-
pie, supra; State V. Mowry, 81 Kan.
1863; State v knight, supra; Davis V.
State, A Fla. 32
The foregoing list does not by any
means exhaust the authorities holding
to the theory that a knowledge of
right and wrong as to the particular
act charged is the proper test of legal
responsibility. On the other hand a
few courts have admitted with some
reservation the theory that an uncon-
trollable impulse, superinduced by
mental disease, even though accom-
panied by capacity to distinguish be-
tween right and wrong, is defense
to crime. Dr. Maudsley, an eloquent
champion of this theory remarks:
There is a destiny made for man
by his ancestors and no one can elude,
were he able to attempt it, the tyranny
of his organization. 1t is submitted
that these writer's and the judges
who have adopted their opinions, have
dealt with mans moral responsibility
as between his, creator and himself,
rather than his legal responsibility
as a member of organized society. 1t
ought to be plain that if every case
! tried should involve an investigation
of the defendants ancestry and en-
vironment with view to determine
to what extent these influenced the
free and untrammeled action of his
will, and how far, in view of these,
he was morally responsible for his
acts, the investigation would be in
terminable. While one of the Incl
dental objects of the law is to reform
offenders, where they are reformable
its principal object is to protect So
ciety and the only practicable work
ing theory upon which it can proceed
| is to assume that every man who
knows right from wrong can observe
the right and avoid the wrong.
The last assignment to be consid-
cred was the admission of the testi-
mony of the witnesses Nicholson and
Tally, the first of whom had seen him
very frequently for a period of two
weeks before the crime and talked
with him on great variety of sub
jects, and on two occasions, at his
request, had accompanied him to the
court house to listen to criminal tri-
ais, while the latter had been his
! iailer for about four months. Subdi-
vision 10 or Sec. 727 L. o. L. permits
an intimate acquaintance" to give his
opinion respecting the mental sanity
Of a person, the reasons for such
opinion being given. AS there are
degrees Of intimacy, the term is some
what indefinite, but it should GER
tainly extend far enough to enable the
witness to know something of the
habits, temperament and general men
tai characteristics of the party whose
| sanity is in question. Being an indef-
mite term, the admission of such tes-
timony is largely in the discretion OF
the trial court, and we are of the
opinion that the testimony admitted
is within the rule announced in State
V. Murray, II Or 413; and State v
Hansen, 25 Or. 1896.
In addition to this, defendant had
called a witness having less intimate
acquaintance with him than either OF
the witnesses called by the state, and
when his testimony was objected to
the district attorney said: 81 DOM
think he has shown a sufficiently
| intimate acquaintance to permit him
! to testify, but have no objection II
the state can introduce the same
character of evidence" The court
said Very well, then let 1t be ad.
mitted." The district attorney re-
marked: "If it is understood that tes-
timony on the same line may be Of
fered by the state" to which counsel
for defendant answered: Certainly
we could not help it," This practi-
cally amounted to a stipulation, that
testimony of the character then being
discussed could be admitted, and the
testimony of the two witnesses above