The
illustration is clear enough, but its application probably
involves a mistaken premise. If he thought he had glass legs
his mind was undoubtedly deranged--whether enough or not
enough to constitute him irresponsible or beyond the effect of
penal discipline might be a difficult question. The generally
accepted doctrine is, that if a man has a delusion concerning
something, which if actually existing as he believed it to be
would be no excuse for his committing the criminal act, he is
responsible and liable to punishment; but, as Bishop well
says:
"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.
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