THE INSANITY DEFENSE FOR CRIME.*

BY JOHN B. CHAPIN, M. D., PHILADELPHIA, PA., Physician-in-Chief and Superintendent, Pennsylvania Hospital for the Insane.

At a meeting of the Pennsylvania Association of Hospital Officers, it seemed to be an opportune occasion to call attention to some of the changes in recent years in the views and dicta held by the courts on insanity as a defense where crime was charged. On the occasion referred to, not only were physicians interested in a trial notable in many respects, but the community and the press engaged in discussions of the various and varying aspects of the crime that had been committed. It was not the first instance where a criminal act perpetrated by an obscure person, who might otherwise have made no contribution whatever to science or the elucidation of any legal problem, became an unwilling and unintentional center of a psychological storm. It seemed also an opportune occasion for an attempt to enrich and illumine (?) our already overloaded nomenclature by a term for which the lexicons of the dead languages have thus far not been equal to furnish a scientific explanation. Perhaps if a more comprehensive name were desired, " modern insanity" might be used to stand for all forms not otherwise now classified or that may be discovered hereafter. Yet, if it is thought a classical term is to be preferred and is essential, the puzzle may be solved by the use of the term psycho-typhosis," although the good old Greeks did not have the thing."

In reference to the paper which has been referred to, a number of cases were cited showing the tendency of the judicial mind to modify the rigor of the opinions of the courts of an earlier day. Perhaps sufficient stress was not in those days laid on the instruction of the courts to jurors to give to the defendant the benefit of any and every doubt as to his mental state. If the courts of

* Read at the sixty-fifth annual meeting of the American Medico-Psychological Society, Atlantic City, N. J., June 1-4, 1909.

later years have been correct in their views, and there is no intention to question their justice, it is clear that counsel have had an immense advantage in the defense by calling a number of experts who, by their testimony and theorizations, have succeeded in creating a doubt to the extent of causing a failure of the jury to agree because of the apparent disagreement of scientific experts who express diametrically opposite views. The main issue of guilt or partial responsibility is clouded or confused by the contradictory testimony of experts, the principal effort being directed apparently to create a doubt in the minds of the jury, and then the court is asked that the jury be instructed to give the prisoner the benefit of that doubt. Whether such a course is purposely followed is not known, but the effect is quite suggestive as a precedent to be followed with a reasonable prospect of a successful defense, the degree of guilt not receiving consideration.

It is a sad commentary upon what is called science, but the legal profession is resourceful and quick to perceive an advantage that may come from what has been called sometimes a battle of the experts. While the number of experts to be called may be unlimited by the court, according to the usual practice, what can be looked for but a state of mental confusion in the minds of the jurymen, even if they possess a conscientious intention of endeavoring to do exactly right? The evident purpose in a case where there is a narrow margin is to create a doubt which, for many reasons, may give a jury the opportunity they may desire to acquit or disagree or unconsciously acquiesce in what is sometimes called the unwritten law. It may be a part of correct legal ethics, which might be noted here, that medical witnesses may be properly called as experts to state all that can be possibly presented either in the interest of the commonwealth or the defendant, leaving it to the court and jury to thresh out a conclusion. While this view of expert testimony may or may not be correct, the rights of a defendant will usually be sustained and cannot be discussed here. It is, however, certainly true that the value of expert testimony has decidedly depreciated in the estimation of the laity, and we believe we may include the courts, because of theorizations that are not generally accepted, nor are they always founded upon well-established clinical experience. There

are difficulties surrounding the nature and value of expert testimony, the method of introducing the expert upon the witness stand so that he may appear there absolutely free from bias from any reasons, all of which are recognized, but a solution has not been reached. We are content, at this stage, to notice in passing some of the embarrassments that surround these trials that are recognized by every physician who has had a trying experience on the witness stand, nor shall we attempt to discuss his psychological state, which remains as an interesting subject for speculation after the ordeal has been passed, except to allude to it.

In a former paper referred to, five trials for homicides were cited in which insanity was alleged to exist at the time-even at the moment only of the commission of the crime. All of the defendants were acquitted. In the opinions of the experts, whose judgments seemed to be accepted, they were cases of so-called mania transitoria, emotional insanity, epileptoid or unconscious states, irresistible or uncontrollable impulse or perhaps it might be as correct to call them impulses that were not controlled.

We now propose to consider another group consisting of cases in each one of which insanity was alleged by experts to exist at the time the crime was committed. This group embraces members who were the counterparts, in many respects, of the group heretofore alluded to, yet all were convicted notwithstanding the usual contradictory testimony of experts. How these different results or verdicts were reached is a fair question for consideration. Were they probably due to the fact that the array of contending experts was not large enough to create doubts that would otherwise have resulted in a mistrial? Were they not due rather to the fact that the court and jury drew a truer dividing line between insanity or disease and the unbridled operation of human passions which are implanted in all, but do not necessarily imply irresponsibility from disease because they are or ought to be controlled? These cases, and other similar cases that might be cited, present a fair question: Shall cases of so-called "modern insanity," which on examination are but instances of the operation of ungoverned passions, wholly escape punishment? Shall persons who have committed sudden acts of violence or made homicidal attempts without apparent motive, and with no history of insanity, be constructively declared insane because insane persons do

commit similar acts of violence? Are we as physicians expected to furnish a hypothesis of the existence of insanity, even in doubtful cases? Do they come within that department of knowledge which the alienist is supposed to possess?

A brief reference without detail will be made to a group consisting of sixteen cases or persons charged with homicide in courts of New York, Pennsylvania, and the District of Columbia.

No. I. B. A convict, making his escape, turned upon an officer in pursuit, seized his pistol and killed him. Defense, epilepsy. A malingerer. No. 2. T. Shot his wife in a public park by firing five shots into her body. Alleged cause, refusal of wife to live with husband, and jealousy. Alleged to have been an epileptic.

No. 3. I. B. Killed his paramour, because she refused to continue her illicit relations, by cutting her throat, nearly severing the head from the body. Defense, emotional insanity from jealousy.

No. 4. S. Killed a young woman, to whom he had been under engagement of marriage, and her brother in a public street by shooting. Defense, epilepsy and dementia.

No. 5. H. A degenerate boy killed a small boy companion by stabbing and torture after Indian methods and then placing the body in a stream of water, covered it with stones. Defense, moral imbecility.

No. 6. T. Shot and killed a banker in a contention about a money transaction. Defense, insanity.

No. 7. C. Killed the foreman of a factory because, on application, he was refused employment. Defense, insanity.

No. 8. S. Killed a young girl who refused to continue illicit relations with prisoner by cutting her throat, nearly severing the head from the body. Alleged epilepsy.

No. 9. H. Killed a farmer in a field of his farm by shooting with a rifle. Had some contention about a business transaction. Defense, inherited insanity.

No. 10. W. Killed his landlord by discharging a load of buckshot at short range into his body during a contention about an extension of a lease that the owner declined to make. Defense, emotional insanity, and insane at the moment he pulled the trigger.

No. II. B. A convict killed a prison guard when angered by a reprimand for neglect of duty. Feigned insanity.

No. 12. W. Charged with killing three children and husband by administration of poison at intervals of time, on whose lives she had procured and collected life insurance money. Defense, insanity and irresponsibility at menstrual periods.

No. 13. S. Killed mother and assaulted sister with a hatchet, secured money the mother refused to part with, arrested in a house of prostitution. Feigned insanity.

No. 14. McN. Killed a young woman, after entering her bedroom unnoticed, by shooting with a pistol purchased a few moments before the killing. The young woman had declined the attention of the defendant. The defense was epilepsy.

No. 15. H. Case of murder by shooting. Alleged epilepsy.

No. 16. B. Killed a fellow workman in an outburst of frenzy by repeated blows with an axe, as he alleged, from momentary apprehension of personal danger.

All of these cases were presumably fairly tried. The defense was insanity, supported by such expert testimony as was available. The forms of insanity were alleged to be transitory mania, irresistible impulse, epilepsy, emotional insanity, or other forms. The plea was supported in each case by a variety of episodes in themselves of no significance and having no connection with each other, and such as might be found in the lifetime of many persons who have not committed any crime; such as, an unusual expression of the eye or face, irrelevant remarks and actions occurring only occasionally. Without exception, no evidence of any delusion was presented, nor was there a single occurrence of a convulsion shown in the cases of alleged epilepsy. There was, however, in the large majority of the cases, perhaps without exception, a history of progressive moral and mental degeneration due to alcoholic habits, vicious habits and excesses, low living and associations. Several of these persons were addicted to sexual excesses, or had disturbances of their marital relations. The crimes committed were marked also by excessive ferocity that usually characterizes the aroused passions in such cases. There was a sudden, emotional, psychical discharge, or eruption, beginning and ending with the criminal act, a common history of many crimes committed by habitual criminals.

The defense in these trials is commonly a collection of erratic acts which are interwoven into a hypothetical question, but in themselves of no significance to the medical mind, yet they are intended to create a doubt which shall be put to the credit of the defendant. Insane persons do commit criminal acts, but it does not follow nor should it be assumed that every killing is the act of a lunatic. Sane persons are constantly doing what the insane do. A single act does not necessarily imply insanity. As physicians, in our daily clinical observations, we endeavor to ascertain what is or has been the normal condition of our patient, and seek to