Court of Appeals of District of Columbia
36 F.2d 548 (1929)

 VAN ORSDEL, Associate Justice.

 Appellant, defendant below, was convicted of the crime of murder in the first degree, and was sentenced to death.  From the judgment, this appeal was taken.

 It is conceded that defendant committed the crime charged.  No good purpose, therefore, would be subserved in reciting the horrible circumstances attending the conception and perpetration of the crime.  A single question of law is presented for our consideration.  The sole defense interposed on behalf of the defendant was insanity, and counsel for defendant requested the court to submit to the jury the following prayer: 'The jury are instructed that if they believe from the evidence that at the time of committing the acts charged in the indictment the defendant was suffering from such a perverted and deranged condition of his mental faculties as rendered him incapable of distinguishing between right and wrong, or unconscious at such time of the nature of the act charged in the indictment while committing the same, or where through conscious of them and able to distinguish between right and wrong, and to know the acts were wrong, yet his will, the governing power of his mind, was, otherwise than voluntarily, so completely destroyed that his action was not subject to it but beyond his control, it will be their duty to acquit the defendant, and in such case their verdict shall be not guilty.'

 No objection was made by counsel for the government to the granting of the prayer.  [p. 549] Indeed counsel suggested his willingness that it should be granted.  The trial justice, however, denied the prayer, and in his general charge defined insanity as follows: 'I want to tell you what the legal definition of sanity and insanity is in connection with the charge of the commission of a crime.  That is the definition by which you and I are both bound.  I want to say to you that a person may be insane and criminally responsible, just as a person may be insane and civilly responsible for that which he does.  These are the limits within which the jury must act in this case.  You are instructed that the term 'insanity,' as used in this defense, means that you must find, before you may reach a verdict of not guilty because of insanity, that the defendant was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of what he was doing-- that is to say, not to know what he was doing-- or, if he did know it, that he did not know that he was doing wrong.  If you have no reasonable doubt but that the defendant did know what he was doing, the nature and quality of what he was doing, and if you have no reasonable doubt but that he did know that he was doing wrong, then you may not find a verdict of not guilty because of insanity, because if he did know what he was doing, if he did know what he was doing was wrong, then in the eyes of the law he was a man of sound mind and legally responsible for what he was doing.'

 Laying aside the objectionable negative style of the charge, we think it erroneous in point of law, in that it ignores the modern well-established doctrine of 'irresistible impulse.'  The English rule, followed by the American courts in their early history, and still adhered to in some of the states, was that the degree of insanity which one must possess at the time of the commission of the crime in order to exempt him from punishment must be such as to totally deprive him of understanding and memory.  This harsh rule is no longer followed by the federal courts or by most of the state courts.  The modern doctrine is that the degree of insanity which will relieve the accused of the consequences of a criminal act must be such as to create in his mind an uncontrollable impulse to commit the offense charged.  This impulse must be such as to override the reason and judgment and obliterate the sense of right and wrong to the extent that the accused is deprived of the power to choose between right and wrong.  The mere ability to distinguish right from wrong is no longer the correct test either in civil or criminal cases, where the defense of insanity is interposed.  The accepted rule in this day and age, with the great advancement in medical science as an enlightening influence on this subject, is that the accused must be capable, not only of distinguishing between right and wrong, but that he was not impelled to do the act by an irresistible impulse, which means before it will justify a verdict of acquittal that his reasoning powers were so far dethroned by his diseased mental condition as to deprive him of the will power to resist the insane impulse to perpetrate the deed, though knowing it to be wrong.

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 In view of the uniform adoption of this doctrine by the trial courts of the District, and the approval of the rule by the Supreme Court, we have no hesitation in declaring it to be the law of this District that, in cases where insanity is interposed as a defense, and the facts are sufficient to call for the application of the rule of irresistible impulse, the jury should be so charged.

 Objection is made by counsel for the government that the facts in this case were not sufficient to call for the allowance of the prayer requested by counsel for the defense.  We think this objection is not well taken.  One of the physicians who was examined as a witness on the issue of insanity testified 'that he would not say that a person who killed his daughter was per se of unsound mind; that the witness believed that at the time the defendant grabbed his daughter he knew what he was doing; and probably appreciated that he was doing wrong,' whereupon counsel for the government propounded the following question: 'You say that he did? A.  He appreciated it, but he was unable to--he knew the right and wrong, but [p. 551] he was unable to carry it through.  Q.  You mean he was unable to carry the right through and refrain from doing the wrong? A.  Yes.'   Another physician testified as follows: 'Q.  Do you think that, at the time he committed that act, he had full recognition of what he was doing, namely, killing his daughter, was wrong? A. Of course, he had the idea, but he was incapable of doing as he would like to do.'  The defendant himself testified 'that after he grabbed her he felt that he would give anything if he could stop, but that he could not.'  A physician who testified for the prosecution 'stated that it would be difficult to say if, after the commencement of the act, the defendant was in such a mental state that he could discontinue it.'

 Considering the evidence as a whole, we are of opinion that it was error to refuse the prayer requested by the defense, and, regardless of the gravity of the offense, or the probable guilt or innocence of the accused, a fundamental principle of law is involved, and a new trial should be granted; in other words, the defendant has been deprived of a substantial right which the law accords him, and which is essential to a fair and impartial trial.

 The judgment is reversed, and the cause is remanded for a new trial.