Larkin, John J.

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University of Kentucky

Kentucky Law JournalVolume 37 | Issue 4 Article 61949Criminal Law--"Partial Insanity" as a Means ofReducing an Intentional Homicide to VoluntaryManslaughterJohn J. LarkinUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Criminal Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationLarkin, John J. (1949) "Criminal Law--"Partial Insanity" as a Means of Reducing an Intentional Homicide to Voluntary Manslaughter,"Kentucky Law Journal: Vol. 37 : Iss. 4 , Article 6.Available at: https://uknowledge.uky.edu/klj/vol37/iss4/6STUDENT NOTESCRIMINAL LAW--"PARTIAL INSANITY" AS A MEANS OF RE-DUCING AN INTENTIONAL HOMICIDE TO VOLUNTARYMANSLAUGHTERVoluntary manslaughter at common law is usually defined asthe intentional killing of a human being without malice afore-thought, but in a sudden heat of passion caused by sufficient provo-cation.' However, it is the contention of some legal writers that theprovocation concept does not include all of the possible causes thatwill reduce an intentional homicide to voluntary manslaughter.In line with this contention, it is the purpose of this note to con-sider partial insanity as a means of reducing an intentional homi-cide to voluntary manslaughter. It is well to point out that partialinsanity as used herein refers to an abnormal mental condition butone not sufficient to constitute "legal insanity" in the particularjurisdiction.To be relieved from criminal responsibility on the ground ofinsanity the accused must be declared to have been legally insaneat the time of the killing. The test recognized both in the majorityof American states and in England is the "right and wrong" test,expounded by the court in M'Naghten's Case' defining the degree ofinsanity which will entitle the accused to an acquittal.' Although itis followed by a majority of the states, a minority recognize this testto be insufficient in many cases and they have supplemented it withthe "irresistible impulse" test.' Such courts take cognizance of theabsence of sufficient will power in the accused to control his actionsand prevent the homicide as a result of his mental condition.' How-ever, due to the impossibility of saying where mental soundness endsand mental abnormality begins, the courts are not consistent in ap-plying these supposedly hard and fast legal tests of insanity.The difficulty of finding a workable test of "legal insanity" andalso, perhaps, an unwillingness in the courts to extend the defini-'Olds v State, 44 Fla. 452, 33 So. 296 (1902) Cottrell v. Com-monwealth, 271 Ky 52, 111 S.W 2d 445 (1937) 2 BURDICK, LAW OFCRIME sec. 460 (1946)2 BURDICK, op. cit. supra, note 1, sec. 461, Note, 36 Ky. L.J. 443(1948)'10 Cl. & Fin. 200, 8 Eng. Rep. 718 (1843)' Guiteau's Case, 10 Fed. 161 (1882) Judd v State, 41 Ariz. 176,16 P 2d 720 (1932), Marceau v Travelers' Ins. Co. of Hartford, 101Cal. 338, 35 Pac. 856 (1894) State v Knight, 95 Me. 467, 50 Atl. 276(1901).5Parsons v. State, 81 Ala. 577, 2 So. 854 (1887), Ryan v People,60 Cal. 425, 153 Pac. 756 (1915).'See State v Peel, 23 Mont. 358, - 59 Pac. 169, 174 (1899).'GLUECK, MENTAL DISORDER AND THE CRIMINAL LAW 207 (1925).STUDENT NOTES AND COMMIAENTStion of insanity beyond its present scope in particular jurisdictions,have caused the courts to make certain adjustments in substantiverules elsewhere in order to bring the law more into line withchanging social concepts on the general subject of mental abnormal-ity. One such adjustment occurs in the changed rule, now found in afew states and recognized by some writers, that one who is par-tially, though not legally, insane cannot be convicted of first degreemurder.' The courts in those states say that the defendant's mentaldisorder (partial insanity) should be considered by the jury to de-termine if the elements of premeditation and deliberation are pres-ent. Another method of handling the problem of partial insanity isto mitigate the punishment rather than the grade of the offense. Thishas been accomplished in some European countries by code provi-sions, whereby the defendant's mental disorder, although not of thedegree to relieve him from criminal responsibility, may neverthelessbe considered to reduce the punishment. Several writers have recog-nized and espoused the soundness of this method." Recognition isalso given this idea in a Nebraska statute whereby punishment maybe reduced by the Supreme Court in all criminal cases where a sub-stantial miscarriage of justice has occurred." Using this statute theSupreme Court has reduced the death sentence to life imprisonmentin homicide cases where partial insanity was a controlling issue."Although these modifications of the general rule of "legal insanity"have gained only minority recognition in this country it would seemthat they do indicate evidence of the courts' dissatisfaction with thepresent-day law regarding cases that fall within that uncertain rangebetween sanity and insanityIt seems that an increasing dissatisfaction with the rule of legalinsanity is causing a noticeable change in the substantive law inanother part of the law of homicide. This change is occurring in thelaw of voluntary manslaughter.Thus, in commenting on Davs v. State," a Tennessee case, Pro-fessor Weihofen states that the decision offers a theory of judging theSee discussion: WEIHOFEN, INSANITY AS A DEFENSE IN CRIMINALLAW 100 (1933) Keedy, Insanity and Crimsnal Responsibility, 30HARV. L. REV. 535, 551 (1917) Weihofen, Partial Insanity and Crim-inal Intent, 24 ILL. L. REV. 505, 514 (1930)"Feebleness of mind or will even though not so extreme as tojustify a finding that the defendant is irresponsible, may properlybe considered by the triers of the facts in determining whether ahomicide has been committed with deliberate and premeditated de-sign to kill, and may thus be effective to reduce the grade of theoffense." People v. Moran, 249 N.Y 179, 163 N.E. 553 (1928). Seealso Jones v Commonwealth, 75 Pa. 403, 410 (1874)"1 See discussion: WEIHOFEN, INSANITY AS A DEFENSE IN CRIMINALLAW 98 (1933)"NEB. COMP. STAT. sec. 29-2308 (1929)."Muzik v. State, 99 Neb. 496, 156 N.W 1056 (1916), Hamblin vState, 81 Neb. 148, 115 N.W 850 (1908)1" 161 Tenn. 23, 28 S.W 2d 993 (1930)- KENbTUCKY LAW JOURNALeffect of provoking circumstances not only by an objective standardof reasonableness, but also by the subjective reaction of the individ-ual to those circumstances so that the same circumstances not suffi-cient to provoke a reasonable man may be held sufficient in caseswhere partial insanity exists."The same idea seems even more evident in the language of thecourt in other cases. In State v. Green,5 the court held the accusedentitled to an instruction on the law of voluntary manslaughterstating:While the record before us fails to show factsthat would be likely to cause a normal mind to bewrought up to a heat of passion, yet, there is some evi-dence in the record that the mind of the defendant was sowrought up, and such evidence, together with the evi-dence tending to show that the defendant was insane, wassufficient to entitle the defendant to have the jury in-structed as to the law of voluntary manslaughter andhave that question submitted to the jury ""In like manner, the court in Fisher v. The People" reversed amurder conviction and held that the accused was entitled to an in-struction on voluntary manslaughter. The requested instruction,which was allowed, provided that although the prisoner may nothave been so insane as to excuse him entirely yet, the mental ab-normality should be considered in requiring less provocation whereextreme jealousy (partial insanity) existed than would have beenrequired had the accused not been jealous."In Maher v. People,19 the charge was assault with intent to killand murder. The accused attempted to prove the crime was simpleassault and battery by reason of the fact that had the victim suc-cumbed, he would be guilty of only voluntary manslaughter. Evi-dence offered by the accused in an attempt to prove sufficient causefor voluntary manslaughter was rejected. On appeal, the appellatecourt held that the question involved the same principles as whereevidence is offered in a prosecution for murder and that the evi-dence should have been received. In further considering sufficiency"WEIHOFEN, op. cit. supra, note 10, at 103."78 Utah 58, 6 P 2d 177 (1931)1 Id. at 67, 6 P 2d at 186 (1931)' 23 Ill. 218 (1859).S "Although the prisoner may not have been so insane as to ex-cuse him entirely, yet, in determining whether at the time of the kill-ing he acted without deliberation, and under the influence of such asudden and irresistible passion as would reduce the grade of the of-fense from murder to manslaughter, it is proper for the jury, if theybelieve that the same provocation would arouse such a sudden andirresistible passion in his mind, if so affected by jealousy, when itwould not have aroused it if he had not been jealous, to take intoconsideration the fact, if proven, that he was jealous, in determiningthe degree and extent of the passion which existed at the time of thekilling." Id. at 220.'" 10 Mich. 212, 81 Am. Dec. 781 (1862).STUDENT NOTES AND C OMENTSof the provocation, the court used the objective standard of a rea-sonable man but modified it in the following manner: " unless,indeed, the person whose guilt is m question be shown to have somepeculiar weakness of mind or infirmity of temper, not arising fromwickedness of heart or cruelty of disposition."'These cases are all decisions involving voluntary manslaughterand all contain the factor of provocation as an agent for reducingthe homicide from murder to manslaughter. It is also true that theycontain the factor of partial insanity as a possible agent for such re-duction. The question therefore arises as to what is the proper classi-fication of these cases. Should the provocation be considered as thebasis for reducing-or should the partial snsanity be considered asthe basis for such reducing? In order to reduce an intentional killingto voluntary manslaughter it is evident that not only must there beprovocation but it must be sufficient legal provocation.2 The veryfact of itself that a man is provoked is not sufficient to relieve himfrom criminal responsibility but it must be that kind of provocationwhich the law recognizes as reasonable and adequate." In these casesunder consideration, the courts point out that there is not sufficientlegal provocation to reduce. However, they do say that the provoca-tion which is present, coupled with the partial insanity may be suf-ficient. Taking this into consideration, is it not reasonable to con-clude, where legal provocation is not present, that it is the defend-ant's abnormal mental condition which forms the real basis for re-ducing an intentional killing to voluntary manslaughter 9 As a mat-ter of fact, State v. Green" states that "When insanity is made anissue in the case of homicide, such insanity may have the effect ofreducing the homicide to voluntary manslaughter.' - In like manner,in Fisher v. The People, "Though such a state of mind would notexcuse the homicide, it should reduce it to manslaughter for de-liberation would be absent, and that is essential to constitutemurder.""'Further evidence that partial insanity may reduce murder tovoluntary manslaughter appears in Mangrun v. Commonwealth'where the court affirmed a manslaughter conviction in a case of in-tentional homicide. The court approved the instruction of the lowercourt which charged that the defendant should be acquitted if hewas so insane as not to know right from wrong or " if they be-lieve from the evidence that he was weak or feeble-minded, theyI Id. at 221, 81 Am. Dec. at 786."Perkins, The Law of Homzczde, 36 J. CRin. L. & CRIMINOLOGY412 (1946)--Miller v Commonwealth, 163 Ky. 246. 173 S.W 761 (1915)Ryan v. State, 115 Wis. 488, 92 N.W 271 (1902)"78 Utah 58, 6 P 2d 177 (1931)"Id. at- 6P 2dat 186.'23 Ill. 218 (1859).Id. at 232.2 19 Ky L. Rep. 94, 39 S.W 703 (1897)KENTUCKY LAW JOURNALshould consider that fact in determining the degree of Ins guilt andthe measurement of his punishment."' Again, in Rogers v. Common-wealth,' the court, in holding that the accused was entitled to aninstruction on voluntary manslaughter, seemed to be of the opinionthat the mental condition (feeble-mindedness) of the accused was amatter " legally put in proof for the consideration of the jury,for the purpose of guiding them to a correct conclusion on the de-gree of the appellant's guilt."' The word "degree" is evidently usedhere as referring to the degree of felonious homicide rather than man attempt to distinguish first from second degree murder."In summarizing the above discussion, it may be concluded thatpartial insanity has been used by a number of courts in reducing anintentional killing to voluntary manslaughter. These cases point outa tendency on the part of the courts to take into consideration, morder that justice may be done and society protected, those unfor-tunate individuals whose abnormal conditions have not otherwisebeen fully considered or accounted for in the law. As to what is con-sidered as partial insanity the cases above have included insanedelusion, extreme jealousy weak or feeble-mindedness, peculiarweakness of mind and degree of insanity Whether wise or unwise,legal writers in advocating changes and developments in the lawhave suggested that by considering partial insanity, a result isreached that harmonizes with sound principle and is consistent withthe public idea of justice."JoiN J. LARKINId. at 95, 39 S.W at 704.96 Ky. 24, 27 S.W 813 (1894)"Id. at 28, 27 S.W at 814.3 Perkins, supra note 21, at 443."WHARTON, CRIMINAL LAW sec. 64 (12th ed. 1932).

Criminal Law-- Partial Insanity  as a Means of Reducing an Intentional Homicide to Voluntary Manslaughter

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Criminal Law-- Partial Insanity as a Means of Reducing an Intentional Homicide to Voluntary Manslaughter

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