Insanity as a Defense in the Criminal Law of Montan

Coombs, Walter P.

English

University of Montana School of Law

Montana Law Review
Volume 1
Issue 1 Spring 1940 Article 10
January 1940
Insanity as a Defense in the Criminal Law of
Montana
Walter P. Coombs
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Review by an authorized editor of The Scholarly Forum @ Montana Law.
Recommended Citation
Walter P. Coombs, Insanity as a Defense in the Criminal Law of Montana, 1 Mont. L. Rev. (1940).
Available at: https://scholarship.law.umt.edu/mlr/vol1/iss1/10
NOTE AND COMMENT
INSANITY AS A DEFENSE IN THE CRIMINAL
LAW OF MONTANA
One of the most vexing problems facing the criminal lawyer
in Montana concerns the attitude of the Supreme Court on the
defense of insanity. The net result of the decisions on this
question by the Montana Supreme Court appears to be that it
has refused to adopt any single test of irresponsibility, but
instead, and contrary to most state Courts, it has wavered be-
tween the right and wrong test, the irresistible impulse test',
and the doctrine known as the New Hampshire rule'.
An authority on this subject has stated that the law in the
United States generally (except New Hampshire) can be sum-
marized as follows:" A person is not criminally responsible for
an offense if at the time it is committed he is so mentally un-
sound as to lack (1) knowledge that the act is wrong, or, (2)
(in seventeen States) will power enough to resist the impulse to
commit it. The first part of this summary states the right and
wrong test. This is law nearly e'erywhere. It is the sole test
of irresponsibility in England' and in twenty-nine American
States.! The wording of the rule varies considerably; in about
half the cases it is stated that, to be excused, a defendant must
be so disordered as not to know the nature and quality of the
act, or, if he did know it, that he did not know it was wrong.
The second test and the one which is considered an alternative
or additional one is the irresistible impulse test and is utilized
in seventeen States.' In these jurisdictions a person is excused
if he is incapable of knowing the wrongfulness of the act, or,
'The much controverted case known as McNaughten's Uase, 10 Clark
& Fin. 200 (1843), is the forerunner of this doctrine and is the case
on which the law of insanity is based. GLUECK, MENTAL DIsonDER
AND THE CRIMINAL LAW, p. 161, et. seq.; Keedy, Insanity and CriminaJ
Responsibility, 30 HARV. L. REv. 724 (1917). The right and wrong test
is the sole test In twenty-nine States, including California, Idaho,
New York, Minnesota, Washington, Texas, Pennsylvania, Illinois. Re-
cent cases applying the rule are People v. Keaton, 211 Cal. 722, 296
Pac. 609 (1931) ; State v. Schafer, 156 Wash. 240, 286 Pac. 833 (1930) ;
People v. Carlin, 194 N. Y. 448, 87 N. E. 805 (1909) ; People v. Zari,
54 Cal. App. 133, 201 Pac. 345 (1921) ; State v. Jones, 191 N. C. 753,
133 S. E. 81 (1926).
'Judge Somerville, in Parsons v. State, 81 Ala. 577, 2 So. 854 (1887),
is much quoted by the Courts. Some of the States which follow this
doctrine are Massachusetts, Arkansas, Colorado, Michigan, Indiana,
Virginia, Utah. E. g., Davis v. U. S., 165 U. S. 373, 41 L. Ed. 750,, 17
S. Ct. 360 (1897) ; Comm. v. Stewart, 255 Mass. 9, 151 N. E. 74 (1926);
People v. Durfee 62 Mich. 487, 29 N. W. 109 (1886).
'State v. Pike, 49 N. H. 399 (1870) ; State v. Jones, 50 N. H. 369 (1871).
'WEIHOFEN, INSANITY AS A DEFENSE, pp. 15-16., et. seq.
'Rex v. Quarmby, 15 Crim. App. 163 (1921) ; Rex v. True, 16 C. A. 164
(1922).
'For citation of the more important States, see note 1, supra
'For example: Comm. v. Deveraux, 257 Mass. 391, 153 N. E. 881 (1926),
note 2, 8upra.
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Coombs: Insanity as a Defense in the Criminal Law of Montana
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MONTANA LAW REVIEW
even though he does know that it is wrong, if he is incapable
of controlling the impulse to commit it.' In New Hampshire,
the Court has rejected both tests and has adopted the rule that
there is no legal test, but it is a question of fact in each case
whether defendant had a mental disease, and, if so, whether it
was of such a character or degree as to take away the capacity
to form or entertain a criminal intent.
The New Hampshire rule is clearly inconsistent with the
other two rules, for it contemplates treating the question as
one solely of fact for the jury. On the other hand, the legal
tests require that the jury be instructed as a matter of law as
to the degree of insanity which will excuse the defendant. These
rules, it must be remembered, are not designed to determine the
question of insanity itself, but rather to define to the jury, after
all the testimony is in, what degree of mental irresponsibility
will relieve the particular defendant from the consequences of
his criminal intent."
In Montana the first case to be decided and the one that
the Court has cited consistently, if not always correctly, is State
v. Peel." In that case defendant came upon the deceased and
immediately shot and killed him. Chief Justice Brantly, speak-
ing for the Court, approved, as against defendant's protest that
it did not give him the benefit of the irresistible impulse de-
'This is the way the rule is usually stated. Similar instructions were
approved in Matheson v. U. S., 227 U. S. 540, 57 L. Ed. 631, 33 S. Ct.
355 (1912) ; Hutsell v. Comm., 225 Ky. 492, 9 S. W. (2d) 132 (1928);
Travis v. State, 160 Ark. 215, 254 S. W. 464 (1923). King v. Creigh-
ton, 14 Can. Crim. Cas. 349 (1908), contains a statement by Riddell,
J., which has been widely quoted as a contrary doctrine: "If you can-
not resist an impulse in any other way, we will hang a rope in front
of your eyes and perhaps that will help you."
'The New Hampshire cases rest the rule on the ground that all ar-
bitrary legal tests of responsibility should be abolished and the ques-
tion in every case is to be decided by the jury on the basis of the query
whether, if the defendant committed the act in question, he had the
capacity to have the specific intent necessary. This is the opposite
of a legal test and therefore the two are inconsistent.
1°Admittedly the law has assumed that tests such as the right and
wrong test, state a factual basis for establishing sanity or insanity.
The confusion as to what part of this problem is one of fact and what
part of law is similar to that which has reigned in the law of neg-
ligence. There, too, the Court quite generally has left to the jury the
question whether the defendant violated a duty which he owed to the
particular plaintiff, as a part of the question of causation. Actually
the scope of defendant's legal duty is a question of law, in the same
manner as is the function of stating at what point the defendant
should be relieved of his criminal responsibility because of insanity.
WEIHFOEN, Op. it., pp. 42-43, 417-18; GREEN, RATIONALE OF PROXIMATE
CAUSE pp. 56, 62, 66, 122, et. seq.; Palsgraf v. Long Island Ry. Co.,
248 N- Y. 339, 162 N. E. 99 (1928) ; Goodhart, Unforseen Consequences
of a Negligent Act, 39 Y.LE LAW JOURN. 44 (1930). Of course, wheth-
er' the defendant falls within some of the psychiatrists' categories of
Insanity is a question of fact.
"23 Mont. 358, 59 Pac. 169 (1899).
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NOTE AND COMMENT
fense, the instruction to the jury as a matter of law that "crim-
inal responsibility is to be determined solely by the capacity of
the defendant to conceive and entertain the intent to commit
that crime ... It follows that one may have the mental capacity
and intelligence to distinguish between right and wrong with
reference to the act, and to understand the consequences of its
commission, and yet be so far deprived of volition by the over-
whelming violence of mental disease that he is not capable of
voluntary action, and therefore not able to choose the right and
avoid the wrong."' The Chief Justice pointed out that under
this instruction the jury might very well have found the de-
fendant excused from the responsibility for his act by reason
of an irresistible impulse and that the instruction was correct."
The Court carried on its discussion in State v. Keerl" where
again the defense to homicide was insanity. The Court was
not clear as to what test it should follow. The judges seem to
have approved of the New Hampshire rule, viz., that there is
no test of responsibility except the presence or absence of the
necessary criminal intent; at the same time, they upheld in-
structions to the effect that the test is whether the accused
knew the act was wrong and had the capacity to choose to do
or not to do it and to govern his conduct in accordance with
such choice. At any rate, the Court decided that the ques-
tion was one for the jury. The majority opinion, prepared
by Mr. Commissioner Callaway, declared that the lower Court
in giving to the jury instructions based on the right and wrong
test and the irresistible impulse test gave instructions based
upon different theories, and consequently on different states
of fact, and that the two were irreconcilable. This means that
the Court recognized both doctrines but took the position that
one set of facts cannot support an instruction on each test
separately. The case, at the same time, approved the reasoning
and result reached in State v. Peel, wherein Brantly said such
instructions were not contradictory. The majority also made
a significant statement when it said that "the question whether
the defendant in any case was affected with insanity to such
a degree as will excuse him from the commission of an act which
would be criminal if done by a sane person is one of fact; it
certainly is not a question of law.' Mr. Justice Holloway dis-
sented in this case, saying that inconsistent doctrines on the
"It is interesting to note that in the Peel case Brantly states irresistible
impulse in terms of criminal intent. He takes the view that "crim-
inal intent" necessarily includes the "will power" factor as well as
knowledge of right and wrong. Hence if either is absent, criminal
intent is likewise necessarily absent.
'Thh Peel case was reaffirmed by Mr. Justice Brantly in State v. Col-
bert, 58 Mont. 584, 194 Pac. 145 (1920), where essentially these views
were restated.
129 Mont. 508, 75 Pac. 362 (1904).
'29 Mont. at 522-523.
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Coombs: Insanity as a Defense in the Criminal Law of Montana
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MONTANA LAW REVIEW
subject of insanity were announced in State v. Peel and that
he was unable to reconcile the doctrine announced in the New
Hampshire cases with what was said in other portions of the
opinion of the majority of the Court in the Keerl case."6 At any
rate, inconsistent doctrines were announced in the Peel and
the Keerl cases. The latter clearly held that the question is
one of fact for the jury and that the Court should instruct as
briefly and as simply as possible. The former appeared to
adopt the "legal test" basis for jury instruction.
Mr. Justice Holloway wrote the majority opinion in State
v. Crowe.1' He maintained there that instructions based upon
the right and wrong test and the irresistible impulse test are
not inconsistent and he cited both the Peel and the Keerl cases
as authority. He reinforced his position in favor of the New
Hampshire doctrine by implying that the question for the jury
is the fact of insanity and that these tests are not legal tests
in the sense that they interfere with the jury's consideration
of that question.
The Court's most recent declaration came in State v.
Narich.' Through Mr. Justice Galen, it referred to the state-
ment made by Mr. Justice Brantley in the Colbert" case (i. e., the
general doctrine of the Peel case allowing the jury to find an
irresistible impulse although not specifically instructed on that)
and then announced what he believed to be the settled law on
the subject. Since, he said, the question is whether the de-
fendant, when he committed the act complained of, had the
mental power to entertain a criminal intent, the answer can
best be reached by submitting to the jury a test founded solely
on the Montana statute on insanity.' In other words, said
Galen, the jury needs to be told only that what is sought is an
answer to the question, whether the defendant, when he com-
mitted the act, had the mental power to entertain a criminal
intent and did entertain it, i.e., the question for determination
being whether defendant, when he committed the act, was in-
sane or sane. The Court said the instructions should be as
brief, plain, and simple as possible in order to avoid confusing
the jury. The jury is allowed to determine the fact of insanity
from the testimony no matter what the character of the insanity
may be. This, the Court added, includes insane delusions and
insane irresistible impulses. For this viewpoint the Court cited
"Id., p. 520. This statement is inconsistent with the Idea of a legal
test and is more in keeping with the New Hampshire rule.
139 Mont. 174, 183, 102 Pac. 579 (1909).
"92 Mont. 17, 9 Pac. (2d) 477 (1932).
'Note 13, supra.
21t. C. M., 1935, Sec. 10726 (intent), 10728 (proof of insanity), 10729
(persons capable of committing crimes). There is no statute estab-
lishing a legal test in Montana but many States have adopted the
right and wrong test and/or the Irresistible impulse test by statute.
This form of instruction was first suggested In State v. Keerl, supra.
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NOTE AND COMMENT
the New Hampshire cases. Since this is the culmination of the
Court's attitude on insanity, it must be taken as the law.
After concluding that an instruction either on the right
and wrong test, or on the irresistible impulse test would be
proper but that both cannot be given in the same case, and
then deciding that both may be so given, the Court approves
a doctrine similar to the New Hampshire rule. One might well
question why the Montana Court has used the New Hampshire
rule and the legal test rule, which are manifestly inconsistent,
in the same case and on the same set of facts. Although the
Court is not clear, it seems that by introducing the New Hamp-
shire doctrine into so many of the cases, the judges have at-
tempted to do one of two things, viz., (1) they may have meant
to do no more than declare that only simple and short instruc-
tions are needed, or (2) they may have meant, as some of the
cases seem to indicate, that the jury is to be the final arbiter
and that, although instructions taken from other jurisdictions
definitely approving the giving of a legal test may be given,'
the question is primarily one of fact and the instructions at
most are merely suggestive to the jury of different factual
bases that may be used to establish insanity. If what the court
has attempted to do is to suggest that the question of relief from
criminal irresponsibility is a jury question, the advisability of
such a rule is to be questioned. As pointed out before, the
amount or degree of mental incompetency which will relieve a
defendant from criminal prosecution depends on public policy.
Insofar as it is willing to allow the jury to determine this, the
Montana Court would permit that body to decide a question of
law, which is surely not the province of the jury.
Only if it is concluded that the criminal law of insanity
ought to be tempered with the viewpoint of the public, as rep-
resented by the jury, should it be allowed such freedom in de-
termining what this policy should be and even then its com-
petence is questionable. Not only does the Montana Court
allow the jury to decide this, but it in reality delegates to the
jury the power to consider whether the accused had the requisite
"bad" state of mind or intent to commit the crime. But the
criminal intent involved in many cases of insanity is not simple.
In the criminal law "intent" is a word of art-it has a strictly
artificial meaning which could hardly be conveyed to the jury
even with the most careful instruction."
*'Often the Montana Court has approved instructions which were orig-
inally taken bodily by the trial Court from jurisdictions employing a
legal test and used by it as a charge under. the New Hampshire view-
point. This result is due partially to the misunderstanding of the
Court as to the two doctrines and the failure to realize the difference
between them.
"Does an instruction that the jury is to determine whether the defend-
ant had the capacity to entertain a criminal Intent impose a more
complex legal question upon the jury than one directing that the jury
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Coombs: Insanity as a Defense in the Criminal Law of Montana
Published by The Scholarly Forum @ Montana Law, 1940
MONTANA LAW REVIEW
The Montana Court has not considered these objections to
its standard as laid down by the Peel, Keerl, and Narich cases.
If the conclusions of this comment are accepted it would seem
that the law governing the proper instructions on insanity in
Montana might well be clarified by a fuller examination of the
question with a more precise statement from the Court as to
how it intends that these essentially inconsistent doctrines be
reconciled in the law, on the one hand, or with the explicit se-
lection of the one or the other as controlling all such instruc-
tions, on the other.
Walter P. Coombs.
DURATION OF LIEN OF MORTGAGE
The problem of the duration of the lien of a mortgage un-
der M. R. C., 1921, Sec. 8267, and under that section as amended
in 1933, has long been a perplexing one to lawyers practicing in
Montana. Cases decided prior to 1939 applied and construed the
statute as it existed before the 1933 amendment. The pertinent
portion of the statute read:
"Every mortgage of real property, made, acknowledged
and recorded as provided by the laws of this State, is there-
upon good and valid as against the creditors of the mort-
gagor or owner of the land mortgaged, or subsequent pur-
chasers or encumbrancers, from the time it is so recorded
until eight years after the maturity of the entire debt or
obligation secured thereby and no longer unless the mort-
gagee . . . within sixty days after the expiration of said
eight years, ... file an affidavit setting forth [stated
facts]."'
The first case construing Sec. 8267 was Morrison v. Farm-
ers' & Traders State Bank, et al. In it the Court reached the
conclusion that M. R. C., 1921, Sec. 8243, which provided in
effect that the lien of a mortgage was good as long as the debt
was enforceable, had been amended by Sec. 1, Ch. 27, L. 1913,
is to determine whether the defendant knew the difference between
right and wrong? Is the conflict as to whether "irresistible impulse-
is a defense, a further example of difference of opinion among the
Courts as to the meaning of "criminal intent"? See 8upra, note 12.
'A mortgage may be extended under the provisions of R.C.M., 1935,
Sec. 8264, which reads, "A mortgage of real property can be created,
renewed, or extended, only by writing, with the formalities required
in the case of a grant of real property". This section deals with an
agreement by the mortgagor and mortgagee, while under Sec. 8267 the
affidavit of renewal is filed by the mortgagee alone.
270 Mont. 146, 225 Pac. 123 (1924). Berkin v. Healy, 52 Mont. 398, 158
Pac. 1020 (1916), held that the statute could not apply to the facts in
that case.
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Montana Law Review, Vol. 1 [1940], Iss. 1, Art. 10
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Insanity as a Defense in the Criminal Law of Montana

University of Montana

Montana Law Review Volume 1 Issue 1 Spring 1940 Article 10 January 1940 Insanity as a Defense in the Criminal Law of Montana Walter P. Coombs Follow this and additional works at: https://scholarworks.umt.edu/mlr  Part of the Law Commons Let us know how access to this document benefits you. Recommended Citation Walter P. Coombs, Insanity as a Defense in the Criminal Law of Montana, 1 Mont. L. Rev. (1940). Available at: https://scholarworks.umt.edu/mlr/vol1/iss1/10 This Note is brought to you for free and open access by ScholarWorks at University of Montana. It has been accepted for inclusion in Montana Law Review by an authorized editor of ScholarWorks at University of Montana. For more information, please contact scholarworks@mso.umt.edu. NOTE AND COMMENTINSANITY AS A DEFENSE IN THE CRIMINALLAW OF MONTANAOne of the most vexing problems facing the criminal lawyerin Montana concerns the attitude of the Supreme Court on thedefense of insanity. The net result of the decisions on thisquestion by the Montana Supreme Court appears to be that ithas refused to adopt any single test of irresponsibility, butinstead, and contrary to most state Courts, it has wavered be-tween the right and wrong test, the irresistible impulse test',and the doctrine known as the New Hampshire rule'.An authority on this subject has stated that the law in theUnited States generally (except New Hampshire) can be sum-marized as follows:" A person is not criminally responsible foran offense if at the time it is committed he is so mentally un-sound as to lack (1) knowledge that the act is wrong, or, (2)(in seventeen States) will power enough to resist the impulse tocommit it. The first part of this summary states the right andwrong test. This is law nearly e'erywhere. It is the sole testof irresponsibility in England' and in twenty-nine AmericanStates.! The wording of the rule varies considerably; in abouthalf the cases it is stated that, to be excused, a defendant mustbe so disordered as not to know the nature and quality of theact, or, if he did know it, that he did not know it was wrong.The second test and the one which is considered an alternativeor additional one is the irresistible impulse test and is utilizedin seventeen States.' In these jurisdictions a person is excusedif he is incapable of knowing the wrongfulness of the act, or,'The much controverted case known as McNaughten's Uase, 10 Clark& Fin. 200 (1843), is the forerunner of this doctrine and is the caseon which the law of insanity is based. GLUECK, MENTAL DIsonDERAND THE CRIMINAL LAW, p. 161, et. seq.; Keedy, Insanity and CriminaJResponsibility, 30 HARV. L. REv. 724 (1917). The right and wrong testis the sole test In twenty-nine States, including California, Idaho,New York, Minnesota, Washington, Texas, Pennsylvania, Illinois. Re-cent cases applying the rule are People v. Keaton, 211 Cal. 722, 296Pac. 609 (1931) ; State v. Schafer, 156 Wash. 240, 286 Pac. 833 (1930) ;People v. Carlin, 194 N. Y. 448, 87 N. E. 805 (1909) ; People v. Zari,54 Cal. App. 133, 201 Pac. 345 (1921) ; State v. Jones, 191 N. C. 753,133 S. E. 81 (1926).'Judge Somerville, in Parsons v. State, 81 Ala. 577, 2 So. 854 (1887),is much quoted by the Courts. Some of the States which follow thisdoctrine are Massachusetts, Arkansas, Colorado, Michigan, Indiana,Virginia, Utah. E. g., Davis v. U. S., 165 U. S. 373, 41 L. Ed. 750,, 17S. Ct. 360 (1897) ; Comm. v. Stewart, 255 Mass. 9, 151 N. E. 74 (1926);People v. Durfee 62 Mich. 487, 29 N. W. 109 (1886).'State v. Pike, 49 N. H. 399 (1870) ; State v. Jones, 50 N. H. 369 (1871).'WEIHOFEN, INSANITY AS A DEFENSE, pp. 15-16., et. seq.'Rex v. Quarmby, 15 Crim. App. 163 (1921) ; Rex v. True, 16 C. A. 164(1922).'For citation of the more important States, see note 1, supra'For example: Comm. v. Deveraux, 257 Mass. 391, 153 N. E. 881 (1926),note 2, 8upra.1Coombs: Insanity as a Defense in the Criminal Law of MontanaPublished by ScholarWorks at University of Montana, 1940MONTANA LAW REVIEWeven though he does know that it is wrong, if he is incapableof controlling the impulse to commit it.' In New Hampshire,the Court has rejected both tests and has adopted the rule thatthere is no legal test, but it is a question of fact in each casewhether defendant had a mental disease, and, if so, whether itwas of such a character or degree as to take away the capacityto form or entertain a criminal intent.The New Hampshire rule is clearly inconsistent with theother two rules, for it contemplates treating the question asone solely of fact for the jury. On the other hand, the legaltests require that the jury be instructed as a matter of law asto the degree of insanity which will excuse the defendant. Theserules, it must be remembered, are not designed to determine thequestion of insanity itself, but rather to define to the jury, afterall the testimony is in, what degree of mental irresponsibilitywill relieve the particular defendant from the consequences ofhis criminal intent."In Montana the first case to be decided and the one thatthe Court has cited consistently, if not always correctly, is Statev. Peel." In that case defendant came upon the deceased andimmediately shot and killed him. Chief Justice Brantly, speak-ing for the Court, approved, as against defendant's protest thatit did not give him the benefit of the irresistible impulse de-'This is the way the rule is usually stated. Similar instructions wereapproved in Matheson v. U. S., 227 U. S. 540, 57 L. Ed. 631, 33 S. Ct.355 (1912) ; Hutsell v. Comm., 225 Ky. 492, 9 S. W. (2d) 132 (1928);Travis v. State, 160 Ark. 215, 254 S. W. 464 (1923). King v. Creigh-ton, 14 Can. Crim. Cas. 349 (1908), contains a statement by Riddell,J., which has been widely quoted as a contrary doctrine: "If you can-not resist an impulse in any other way, we will hang a rope in frontof your eyes and perhaps that will help you."'The New Hampshire cases rest the rule on the ground that all ar-bitrary legal tests of responsibility should be abolished and the ques-tion in every case is to be decided by the jury on the basis of the querywhether, if the defendant committed the act in question, he had thecapacity to have the specific intent necessary. This is the oppositeof a legal test and therefore the two are inconsistent.1°Admittedly the law has assumed that tests such as the right andwrong test, state a factual basis for establishing sanity or insanity.The confusion as to what part of this problem is one of fact and whatpart of law is similar to that which has reigned in the law of neg-ligence. There, too, the Court quite generally has left to the jury thequestion whether the defendant violated a duty which he owed to theparticular plaintiff, as a part of the question of causation. Actuallythe scope of defendant's legal duty is a question of law, in the samemanner as is the function of stating at what point the defendantshould be relieved of his criminal responsibility because of insanity.WEIHFOEN, Op. it., pp. 42-43, 417-18; GREEN, RATIONALE OF PROXIMATECAUSE pp. 56, 62, 66, 122, et. seq.; Palsgraf v. Long Island Ry. Co.,248 N- Y. 339, 162 N. E. 99 (1928) ; Goodhart, Unforseen Consequencesof a Negligent Act, 39 Y.LE LAW JOURN. 44 (1930). Of course, wheth-er' the defendant falls within some of the psychiatrists' categories ofInsanity is a question of fact."23 Mont. 358, 59 Pac. 169 (1899).2Montana Law Review, Vol. 1 [1940], Iss. 1, Art. 10https://scholarworks.umt.edu/mlr/vol1/iss1/10NOTE AND COMMENTfense, the instruction to the jury as a matter of law that "crim-inal responsibility is to be determined solely by the capacity ofthe defendant to conceive and entertain the intent to committhat crime ... It follows that one may have the mental capacityand intelligence to distinguish between right and wrong withreference to the act, and to understand the consequences of itscommission, and yet be so far deprived of volition by the over-whelming violence of mental disease that he is not capable ofvoluntary action, and therefore not able to choose the right andavoid the wrong."' The Chief Justice pointed out that underthis instruction the jury might very well have found the de-fendant excused from the responsibility for his act by reasonof an irresistible impulse and that the instruction was correct."The Court carried on its discussion in State v. Keerl" whereagain the defense to homicide was insanity. The Court wasnot clear as to what test it should follow. The judges seem tohave approved of the New Hampshire rule, viz., that there isno test of responsibility except the presence or absence of thenecessary criminal intent; at the same time, they upheld in-structions to the effect that the test is whether the accusedknew the act was wrong and had the capacity to choose to door not to do it and to govern his conduct in accordance withsuch choice. At any rate, the Court decided that the ques-tion was one for the jury. The majority opinion, preparedby Mr. Commissioner Callaway, declared that the lower Courtin giving to the jury instructions based on the right and wrongtest and the irresistible impulse test gave instructions basedupon different theories, and consequently on different statesof fact, and that the two were irreconcilable. This means thatthe Court recognized both doctrines but took the position thatone set of facts cannot support an instruction on each testseparately. The case, at the same time, approved the reasoningand result reached in State v. Peel, wherein Brantly said suchinstructions were not contradictory. The majority also madea significant statement when it said that "the question whetherthe defendant in any case was affected with insanity to sucha degree as will excuse him from the commission of an act whichwould be criminal if done by a sane person is one of fact; itcertainly is not a question of law.' Mr. Justice Holloway dis-sented in this case, saying that inconsistent doctrines on the"It is interesting to note that in the Peel case Brantly states irresistibleimpulse in terms of criminal intent. He takes the view that "crim-inal intent" necessarily includes the "will power" factor as well asknowledge of right and wrong. Hence if either is absent, criminalintent is likewise necessarily absent.'Thh Peel case was reaffirmed by Mr. Justice Brantly in State v. Col-bert, 58 Mont. 584, 194 Pac. 145 (1920), where essentially these viewswere restated.129 Mont. 508, 75 Pac. 362 (1904).'29 Mont. at 522-523.3Coombs: Insanity as a Defense in the Criminal Law of MontanaPublished by ScholarWorks at University of Montana, 1940MONTANA LAW REVIEWsubject of insanity were announced in State v. Peel and thathe was unable to reconcile the doctrine announced in the NewHampshire cases with what was said in other portions of theopinion of the majority of the Court in the Keerl case."6 At anyrate, inconsistent doctrines were announced in the Peel andthe Keerl cases. The latter clearly held that the question isone of fact for the jury and that the Court should instruct asbriefly and as simply as possible. The former appeared toadopt the "legal test" basis for jury instruction.Mr. Justice Holloway wrote the majority opinion in Statev. Crowe.1' He maintained there that instructions based uponthe right and wrong test and the irresistible impulse test arenot inconsistent and he cited both the Peel and the Keerl casesas authority. He reinforced his position in favor of the NewHampshire doctrine by implying that the question for the juryis the fact of insanity and that these tests are not legal testsin the sense that they interfere with the jury's considerationof that question.The Court's most recent declaration came in State v.Narich.' Through Mr. Justice Galen, it referred to the state-ment made by Mr. Justice Brantley in the Colbert" case (i. e., thegeneral doctrine of the Peel case allowing the jury to find anirresistible impulse although not specifically instructed on that)and then announced what he believed to be the settled law onthe subject. Since, he said, the question is whether the de-fendant, when he committed the act complained of, had themental power to entertain a criminal intent, the answer canbest be reached by submitting to the jury a test founded solelyon the Montana statute on insanity.' In other words, saidGalen, the jury needs to be told only that what is sought is ananswer to the question, whether the defendant, when he com-mitted the act, had the mental power to entertain a criminalintent and did entertain it, i.e., the question for determinationbeing whether defendant, when he committed the act, was in-sane or sane. The Court said the instructions should be asbrief, plain, and simple as possible in order to avoid confusingthe jury. The jury is allowed to determine the fact of insanityfrom the testimony no matter what the character of the insanitymay be. This, the Court added, includes insane delusions andinsane irresistible impulses. For this viewpoint the Court cited"Id., p. 520. This statement is inconsistent with the Idea of a legaltest and is more in keeping with the New Hampshire rule.139 Mont. 174, 183, 102 Pac. 579 (1909)."92 Mont. 17, 9 Pac. (2d) 477 (1932).'Note 13, supra.21t. C. M., 1935, Sec. 10726 (intent), 10728 (proof of insanity), 10729(persons capable of committing crimes). There is no statute estab-lishing a legal test in Montana but many States have adopted theright and wrong test and/or the Irresistible impulse test by statute.This form of instruction was first suggested In State v. Keerl, supra.4Montana Law Review, Vol. 1 [1940], Iss. 1, Art. 10https://scholarworks.umt.edu/mlr/vol1/iss1/10NOTE AND COMMENTthe New Hampshire cases. Since this is the culmination of theCourt's attitude on insanity, it must be taken as the law.After concluding that an instruction either on the rightand wrong test, or on the irresistible impulse test would beproper but that both cannot be given in the same case, andthen deciding that both may be so given, the Court approvesa doctrine similar to the New Hampshire rule. One might wellquestion why the Montana Court has used the New Hampshirerule and the legal test rule, which are manifestly inconsistent,in the same case and on the same set of facts. Although theCourt is not clear, it seems that by introducing the New Hamp-shire doctrine into so many of the cases, the judges have at-tempted to do one of two things, viz., (1) they may have meantto do no more than declare that only simple and short instruc-tions are needed, or (2) they may have meant, as some of thecases seem to indicate, that the jury is to be the final arbiterand that, although instructions taken from other jurisdictionsdefinitely approving the giving of a legal test may be given,'the question is primarily one of fact and the instructions atmost are merely suggestive to the jury of different factualbases that may be used to establish insanity. If what the courthas attempted to do is to suggest that the question of relief fromcriminal irresponsibility is a jury question, the advisability ofsuch a rule is to be questioned. As pointed out before, theamount or degree of mental incompetency which will relieve adefendant from criminal prosecution depends on public policy.Insofar as it is willing to allow the jury to determine this, theMontana Court would permit that body to decide a question oflaw, which is surely not the province of the jury.Only if it is concluded that the criminal law of insanityought to be tempered with the viewpoint of the public, as rep-resented by the jury, should it be allowed such freedom in de-termining what this policy should be and even then its com-petence is questionable. Not only does the Montana Courtallow the jury to decide this, but it in reality delegates to thejury the power to consider whether the accused had the requisite"bad" state of mind or intent to commit the crime. But thecriminal intent involved in many cases of insanity is not simple.In the criminal law "intent" is a word of art-it has a strictlyartificial meaning which could hardly be conveyed to the juryeven with the most careful instruction."*'Often the Montana Court has approved instructions which were orig-inally taken bodily by the trial Court from jurisdictions employing alegal test and used by it as a charge under. the New Hampshire view-point. This result is due partially to the misunderstanding of theCourt as to the two doctrines and the failure to realize the differencebetween them."Does an instruction that the jury is to determine whether the defend-ant had the capacity to entertain a criminal Intent impose a morecomplex legal question upon the jury than one directing that the jury5Coombs: Insanity as a Defense in the Criminal Law of MontanaPublished by ScholarWorks at University of Montana, 1940MONTANA LAW REVIEWThe Montana Court has not considered these objections toits standard as laid down by the Peel, Keerl, and Narich cases.If the conclusions of this comment are accepted it would seemthat the law governing the proper instructions on insanity inMontana might well be clarified by a fuller examination of thequestion with a more precise statement from the Court as tohow it intends that these essentially inconsistent doctrines bereconciled in the law, on the one hand, or with the explicit se-lection of the one or the other as controlling all such instruc-tions, on the other.Walter P. Coombs.DURATION OF LIEN OF MORTGAGEThe problem of the duration of the lien of a mortgage un-der M. R. C., 1921, Sec. 8267, and under that section as amendedin 1933, has long been a perplexing one to lawyers practicing inMontana. Cases decided prior to 1939 applied and construed thestatute as it existed before the 1933 amendment. The pertinentportion of the statute read:"Every mortgage of real property, made, acknowledgedand recorded as provided by the laws of this State, is there-upon good and valid as against the creditors of the mort-gagor or owner of the land mortgaged, or subsequent pur-chasers or encumbrancers, from the time it is so recordeduntil eight years after the maturity of the entire debt orobligation secured thereby and no longer unless the mort-gagee . . . within sixty days after the expiration of saideight years, ... file an affidavit setting forth [statedfacts]."'The first case construing Sec. 8267 was Morrison v. Farm-ers' & Traders State Bank, et al. In it the Court reached theconclusion that M. R. C., 1921, Sec. 8243, which provided ineffect that the lien of a mortgage was good as long as the debtwas enforceable, had been amended by Sec. 1, Ch. 27, L. 1913,is to determine whether the defendant knew the difference betweenright and wrong? Is the conflict as to whether "irresistible impulse-is a defense, a further example of difference of opinion among theCourts as to the meaning of "criminal intent"? See 8upra, note 12.'A mortgage may be extended under the provisions of R.C.M., 1935,Sec. 8264, which reads, "A mortgage of real property can be created,renewed, or extended, only by writing, with the formalities requiredin the case of a grant of real property". This section deals with anagreement by the mortgagor and mortgagee, while under Sec. 8267 theaffidavit of renewal is filed by the mortgagee alone.270 Mont. 146, 225 Pac. 123 (1924). Berkin v. Healy, 52 Mont. 398, 158Pac. 1020 (1916), held that the statute could not apply to the facts inthat case.6Montana Law Review, Vol. 1 [1940], Iss. 1, Art. 10https://scholarworks.umt.edu/mlr/vol1/iss1/10

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Insanity as a Defense in the Criminal Law of Montana

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