“This branch of the doctrine should be cautiously received; for delusion of any kind is strongly indicative of a generally diseased mind.”

The new test to determine responsibility will recognize, as does the law of Germany, that there can be no criminal act where the free determination of the will is excluded by disease, and that the capacity to distinguish between right and wrong is inconclusive.  It may perhaps have to take a general form, leaving it to a lay, or a mixed lay-and-expert jury to say merely whether the accused had a disease of the mind of a type recognized by science, and whether the alleged criminal act was of such a character as would naturally flow from that type of insanity, in which case it would seem obviously just to regard the defendant as partially irresponsible, and perhaps entirely so.  Possibly the practical needs of the moment might be met by permitting such a jury to determine whether the defendant had such a knowledge of the wrongful nature and consequences of his act and such a control over his will as to be a proper subject of punishment.* This would require the jury to find that the defendant had some knowledge of right and wrong and the power to choose between them.  In any event, to render the accused entirely irresponsible, his act should arise out of and be caused solely by the diseased condition of his mind.  The law, while asserting the responsibility of many insane people, should recognize “partial” responsibility as well.

See State vs.  Richards, 1873, Conn.

The reader may feel that little after all would be gained, but he will observe that at any rate such a test, however imperfect, would permit juries to do lawfully that which they now do by violating their oaths.  The writer believes that the best concrete test yet formulated and applied by any court is that laid down in Parsons vs.  The State of Alabama (81 Ala., 577): 

“1.  Was the defendant at the time of the commission of the alleged crime, as matter of fact, afflicted with a disease of the mind, so as to be either idiotic, or otherwise insane?

“2.  If such be the case, did he know right from wrong as applied to the particular act in question?  If he did not have such knowledge, he is not legally responsible.

“3.  If he did have such knowledge, he may nevertheless not be legally responsible if the two following conditions concur: 

“(1) If, by reason of the duress of such mental disease, he had so far lost the power to choose between the right and wrong, and to avoid doing the act in question, as that his free agency was at the time destroyed.

“(2) And if, at the same time, the alleged crime was so connected with such mental disease, in the relation of cause and effect, as to have been the product of it solely.”

But whatever modification in the present test of criminal responsibility is adopted, there must come an equally, if not even more important, reform in the procedure in insanity cases, which to-day is as cumbersome and out of date as the law itself.  As things stand now in New York and most other jurisdictions there are no adequate means open to the State to find out the actual present or past mental condition of the defendant until the trial itself, and ofttimes not even then.