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
"`. . . [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.
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.
(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.
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).
(Emphasis supplied.) In the following cases the question raised has been treated at some length, and we find it unnecessary to here repeat: Mass. v. Territory, 1901, 10 Okla. 714, 63 P. 960, 53 L.R.A. 814; Turner v. Territory, 1905, 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; 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.App., 283 P.2d 558. There are many other cases from this court that might be cited and where the instruction given as to insanity as a defense was substantially as the instruction given in the within case.
, 10 Okla. 714, 63 P. 960, 53 L.R.A. 814;
And if so, he should be by the trial court committed to one of the state hospitals for the insane, to be there kept until legally discharged. The Criminal Court of Appeals has had occasion many times to construe the above statutes prior to the amendment of 1935. Marshall v. Territory, 2 Okla. Cr. 136, 101 P. 139; Maas v. Territory, 10 Okla. 714, 63 P. 960, 53 L.R.A. 814; Signs v. State, 35 Okla. Cr. 340, 250 P. 938; Weiland v. State, 58 Okla. Cr. 108, 50 P.2d 741; Alder v. State, 53 Okla. Cr. 374, 12 P.2d 545; Johnson v. State, 73 Okla. Cr. 370, 121 P.2d 625; Ex parte Gilbert, 71 Okla. Cr. 268, 111 P.2d 205. The amendment to the statute has never been considered by this court.
This court has since its creation had occasion to have before it the construction of these statutes many times. Some of the cases are as follows: Marshall v. Territory, 2 Okla. Cr. 136, 101 P. 139; Maas v. Territory, 10 Okla. 714, 63 P. 960, 53 L. R. A. 814; Denton v. State, 58 Okla. Cr. 275, 53 P.2d 1136; Weiland v. State, 58 Okla. Cr. 108, 50 P.2d 741; Signs v. State, 35 Okla. Cr. 340, 250 P. 938; Alexander v. State, 66 Okla. Cr. 219, 90 P.2d 949; Lee v. State, 30 Okla. Cr. 14, 234 P. 654. It has also had before it in many illustrious cases the question of insanity as a defense in criminal cases.