If this is so, then Chase is no less an historical accident than M'Naghten's Case. The court in Chase relied on three cases: Jessner v. State, 202 Wis. 184, 231 N.W. 634, 71 A.L.R. 1005 (1930); Maas v. Territory, 10 Okl. 714, 63 P. 960 (1901); and Montgomery v. State, 68 Tex.Crim. 78, 151 S.W. 813 (1912). As the Note, "Criminal Insanity," UCLA-Alaska L.Rev., 8 Alaska L.J. 152, 153-54 (Aug. 1970), points out, these cases were decided before many of the modern advances in psychiatry had been widely disseminated.
INSTRUCTIONS — What proper. We have examined instruction numbered five which is assigned as error, and we think it fairly and correctly states the law applicable to this case, and comes within the rule announced by this court in Maas v. Territory, 63 P. 960. And there was no error in refusing to give instruction number 4 1-2, which was offered by the defendant, since said instruction was embodied in the general charge of the court.
However, the appropriateness of the defense has rarely been questioned, and only a few American jurisdictions have ever attempted to eliminate the concept from their criminal justice systems. Cases addressing the right and wrong test of insanity: State v. Shippey, 10 Minn. 223 (1865); Flanagan v. People, 52 N.Y. 467 (1873); Cunningham v. State, 56 Miss. 269 (1879); Guiteau's Case, 10 F. 161 (D.C. Cir. 1882); State v. Mowry, 37 Kan. 369, 15 P. 282 (1887); State v. Alexander, 30 S.C. 74, 8 S.E. 440 (1889); State v. Zorn, 22 Or. 591, 30 P. 317 (1892); State v. Harrison, 36 W. Va. 729, 15 S.E. 982 (1892); State v. O'Neil, 51 Kan. 651, 33 P. 287 (1893); State v. Hartley, 22 Nev. 342, 40 P. 372 (1895); Knights v. State, 58 Neb. 225, 78 N.W. 508 (1899); People v. Methever, 132 Cal. 326, 64 P. 481 (1901); Maas v. Territory, 10 Okla. 714, 63 P. 960 (1900); State v. Knight, 95 Me. 467, 50 A. 276 (1901); Schwartz v. State, 65 Neb. 196, 91 N.W. 190 (1902); People v. Silverman, 181 N.Y. 235, 73 N.E. 980 (1905); Turner v. Territory, 15 Okla. 557, 82 P. 650 (1905); State v. Wetter, 11 Idaho 433, 83 P. 341 (1905); People v. Willard, 150 Cal. 543, 89 P. 124 (1907); Duthey v. State, 131 Wis. 178, 111 N.W. 222 (1907); State v. Paulsgrove, 203 Mo. 193, 101 S.W. 27 (1907); Smith v. State, 95 Miss. 786, 49 So. 945 (1909); State v. Maioni, 78 N.J.L. 339, 74 A. 526 (1909); People v. Carlin, 194 N.Y. 448, 87 N.E. 805 (1909); State v. Brown, 36 Utah 46, 102 P. 641 (1909); State v. Craig, 52 Wn. 66, 100 P. 167 (1909); Oborn v. State, 143 Wis. 249, 126 N.W. 737 (1910); State v. Hassing, 60 Or. 81, 118 P. 195 (1911); State v. Jackson, 87 S.C. 407, 69 S.E. 883 (1911); State v. Riddle, 245 Mo. 451, 150 S.W. 1044 (1912); People v. Ashland, 20 Cal.App. 168, 128 P. 798 (1912); State v. English, 164 N.C. 497, 80 S.E. 72 (1913); People v. Harris, 169 Cal. 53, 14
202 Wis. 184, 231 N.W. 634, 639, 71 A.L.R. 1005 (1930). See also Montgomery v. State, 68 Tex.Cr.R. 78, 151 S.W. 813, 817 (1912) where the court said "It is almost inconceivable that a man could be sane enough to fully appreciate and know the nature and quality of an act, and yet not know whether it was right or wrong to commit such an act."; and Maas v. Territory, 10 Okl. 714, 63 P. 960, 961, 53 L.R.A. 814 (1901), where it was said that "knowledge of the wrongfulness of an act also embraces capacity to understand the nature and consequences of the same." A discussion of this question is found in Weihofen, Mental Disorder as a Criminal Defense 73-76 (1954).
"If the accused suggest insanity at the time of trial, should the question of present insanity be determined prior to arraignment and plea; if so, can this question be determined by the judge of the court or should it be submitted to a jury?" 14 R.C.L. 605, 610, Insanity, sections 58-61; 32 C.J. 751, Insane Persons, sections 550-552; 16 C.J. 789-791, Criminal Law, sections 2015-2017; Mass. v. Territory, 10 Okla. 714, 63 P. 960, 53 L.R.A. 814; Dietz v. State, 149 Wis. 462, 136 N.W. 166, Ann. Cas. 1913C, 732; Steward v. State, 124 Wis. 623, 102 N.W. 1079, 4 Ann. Cas. 389; Baughn v. State, 100 Ga. 554, 28 S.E. 68, 38 L.R.A. 579; Nobles v. Georgia, 168 U.S. 398, 18 S.Ct. 87, 42 L.Ed. 515; Hawie v. State, 83 So. 158, 121 Miss. 197; State v. Nordstrum, 21 Wn. 403, 58 P. 248, 53 L.R.A. 584. Hugh V. Wall, of Brookhaven, and J.H. Price, of Magnolia, for appellee.
"The provision of chapter 100 of the Laws of 1893 (Gen. Stat. 1901, secs. 5938-5947) which makes the specification of weights in bills of lading issued by railroad companies for hay, grain, etc., shipped over their lines, conclusive evidence of the correctness of such weights, is unconstitutional because denying to the companies due process of law, and because wrongfully depriving the courts of the judicial power to determine the weight and sufficiency of evidence." See, also, People v. Rose, 207 Ill. 352, 69 N.E. 762; McNulty et al. v. Toof et al., 116 Ky. 202-210, 75 N.E. 258; State v. Schlenker, 112 Iowa, 642, 84 N.W. 698, 51 L. R. A. 347, 84 Am. St. Rep. 360; Southern P. R. Co. v. Bd. of Railroad Com'rs (C. C.) 78 Fed. 236; Ramish v. Hartwell, 126 Cal. 443, 58 P. 920; Chicago, etc., Ry. Co. v. Minnesota, 134 U.S. 418, 10 Sup. Ct. 462, 702, 33 L.Ed. 970; Little Rock, etc., Ry. Co. v. Payne, 33 Ark. 816, 34 Am. Rep. 55; Corbin v. Hill, 21 Iowa, 70; Weeks v. Merkle, 10 Okla. 714; White v. Flynn, 23 Ind. 46; Groesbeck et al. v. Seeley, 13 Mich. 329; Wantlan v. White, 19 Ind. 470; Marx v. Hanthorn, 148 U.S. 172, 13 Sup. Ct. 508, 37 L.Ed. 410; Abbott v. Lindenbower, 42 Mo. 162. We are therefore of the opinion that the whole act is unconstitutional and must fall.
They charge the jury, in effect, that the law does not recognize the theory of uncontrollable impulse as an excuse for crime, so long as the defendant has the mental capacity to know right from wrong and to know and understand the nature and consequences of his acts. The rule stated has been adopted by this court. ( Maas v. Territory, 10 Okla. 714.) Certain instructions requested by the defendant were refused, and exceptions saved; but this was not error, as the jury was fully instructed as to all matters in issue, and, taking the instructions given altogether, they fairly stated the law of the case. The judgment of the lower court is hereby affirmed, at the cost of the plaintiff in error.
"`. . . [T]hat the doubt justifying the impaneling of a separate jury to try the issue of the defendant's present sanity, under the statute, must arise in the mind of the court from the facts and circumstances, which facts and circumstances should be of substantial character. . . .'" (Emphasis added, citations omitted) Also see, Grayson v. State, 85 Okla. Cr. 266, 188 P.2d 696 (1947), and Maas v. Territory, 10 Okla. 714, 63 P. 960 (1901). In the instant case no doubt arose in the mind of the court which had opportunity to observe the demeanor of the defendant.
(Emphasis added) See also Maas v. Territory, 10 Okla. 714, 63 P. 960, 53 L.R.A. 814; Grayson v. State, 85 Okla. Cr. 266, 188 P.2d 696. The only authority cited by defense counsel is Marshall v. Territory, 2 Okla. Cr. 136, 101 P. 139.
Accordingly five questions were put to the fifteen judges of England regarding the law of insanity, and from their answers the "right-wrong rules", or M'Naghten Rules, are constituted. Maas v. Territory, 10 Okla. 714, 63 P. 960, 53 L.R.A. 814; Turner v. Territory, 15 Okla. 557, 82 P. 650; Alberty v. State, 10 Okla. Cr. 616, 140 P. 1025, 52 L.R.A., N.S., 248; Smith v. State, 12 Okla. Cr. 307, 155 P. 699; Owen v. State, 13 Okla. Cr. 195, 163 P. 548; Roe v. State, 17 Okla. Cr. 587, 191 P. 1048; Tittle v. State, 44 Okla. Cr. 287, 280 P. 865; Kennamer v. State, 59 Okla. Cr. 146, 57 P.2d 646; Merrick v. State, 56 Okla. Cr. 88, 34 P.2d 281; Gallagher v. State, 81 Okla. Cr. 15, 159 P.2d 562; Berryman v. State, Okla. Cr. 283 P.2d 558. The most recent case in which the M'Naghten test was retained is Doggett v. State, Okla. Cr. 371 P.2d 523.