State v. Cumberworth

• Citation: 69 Ohio App. 239,43 N.E.2d 510
• Decision Date: 06 April 1942
• Docket Number: 18699.
• Parties: STATE v. CUMBERWORTH.
• Court: United States Court of Appeals (Ohio)

43 N.E.2d 510

69 Ohio App. 239

STATE v. CUMBERWORTH.

No. 18699.

Court of Appeals of Ohio, Eighth District, Cuyahoga.

April 6, 1942

Mooney Hahn, Loeser, Keough & Freedheim, of Cleveland, for appellant.

Frank T. Cullitan, Pros. Atty., and Neil W. McGill, both of Cleveland, for appellee.

SKEEL Judge.

Defendant was adjudged guilty in the Court of Common Pleas of the crime of sodomy. The case was tried to the court, the defendant having waived a trial by jury, in the manner provided by law.

The record presents one issue of fact and one question of law. First, whether or not there is sufficient evidence to sustain the defendant's contention by the proper degree of proof that although the defendant had sufficient mind to distinguish between right and wrong, with respect to the criminal act which he admits he committed, yet due to disease of mind he did not have sufficient will power to resist the urge to commit such unlawful act. Second, is 'irresistible impulse' due to disease of mind available as a defense iN ohio, where it is admitted that defendant had sufficient mental capacity to distinguish between right and wrong.

Upon the first of these two questions, the record fails to support the defendant's contention. The defendant called an eminent authority on mental diseases who testified in part that the defendant was suffering from what the witness called 'psychopathic personality' which is evidenced by abnormal sex practices and other maladjustments. The doctor said his examination was conducted entirely by asking questions which developed the defendant's lack of power to inhibit himself in abnormal sex practices. In other words the defendant lacked 'will power.' The doctor further testified as follows:

'Q. He does not have a phychosis now? Can you tell us, doctor, whether Stuart is suffering now and was suffering on or about August 15th of this year from a mental disease? A. Yes, he was. I think his mental disease includes many different categories, and psychopathic personality is one of them.

'Q. That is not an organic disease of the mind? A. No, it is functional so far as anyone knows. In other words, there is no physical disease of the brain.

'Q. Psychiatry, if it cannot find an organic disease of the brain, classifies the mental disease or mental disorder as functional? A. That is right. * * * 'Q. Now, it has been testified--has been charged in the opening statement by the prosecutor, and admitted by Stuart, that on August 15th of this year he committed the act known as fellatio with John Scullin; that from time to time over the course of the past few years he has committed the same act with Scullin and with other boys. Directing your attention to August 15th, or on or about August 15th, at the time the act took place, would you say, on the basis of your examination, that Stuart had the power to control his misdirected sex impulse? A. I am doubtful if he had control. I asked him about that. Not about this specific August 15th occurrence, but about them in general. I asked him when this idea, this impulse had come up, would any other ideas come up? 'Well' he said, 'sometimes the idea would come up that it was not the right thing to do.' I asked him what--when the idea that it was not the right thing to do came up, what happened then? 'Well' he said, 'I went ahead and did that anyway.' I asked him why, and he says he didn't know, he just did it.'

'Q. Did he at that time know the nature of his act? That is, did he know it was wrong? A. Yes, he knew that it was wrong.

'Q. But he could not--he could not because of mental disease, prevent himself or inhibit himself from doing it? A. That is right.'

This testimony clearly substantiates the contention of the state that the defendant knew that his sodomous acts were wrong. Whether it tends to establish that because of disease or lack of mind he was able to control his unlawful acts or conduct is open to considerable doubt. The defendant does not say so; he was not called to the witness stand. The question put to him by the psychiatrist brought forth little or no information of the character or strength of the urge. After he said he knew his conduct was wrong, and in response to a question put to him during his examination by his own doctor, '* * * When the idea that it was not the right thing to do came up, what happened?' (A) 'Well' he said, 'I went ahead and did that anyway.' This evidence, together with the known facts of his abnormal conduct was the sole basis for the defendant's contention that he was driven to his misdeeds by an irresistible impulse. It may be that this would be sufficient to diagnose the defendant's case for clinical purposes, but certainly it would constitute a dangerous doctrine to hold that such testimony is sufficient to establish irresistible impulse when viewed from the standpoint of protecting the social order from the ravages of criminal conduct.

We conclude therefore that even if it were admitted that the defense of irresistible impulse compelling the doing of a known unlawful and wrongful act due to disease or lack of mind, constitutes a legal defense when properly proved, the court, in this case, was clearly justified in finding that such affirmative defense was not established by the preponderance of evidence.

We will now inquire into the state of the law with regard to the extent to which a plea of not guilty by reason of insanity may be a defense in a criminal case.

The leading case arose in England in 1843 and is known as McNaughton's case (10 Cl. & Fin., 200, 8 Eng.Rep., 718 at 722). The judges, in reply to a question put to them by the House of Lords, under what circumstances the law recognizes insanity as a defense in criminal actions, said: 'To establish a defense on the ground of insanity, it must be clearly proved that at the time of committing the act the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong.'

This statement of the law as to the extent to which insanity may be pleaded as an affirmative defense in a criminal action, has been generally accepted by all courts and in many states has been adopted as the only test where insanity is pleaded as a defense in a criminal prosecution. Some jurisdictions, however, since the McNaughton case, have gone beyond the limits of the right and wrong test, holding that a person is not criminally responsible for an act, if done solely by reason of an irresistible impulse, although he may have known that his act was both morally and legally wrong. This extension of the right and wrong test is usually justified on the supposed ground that the actor is not a free agent because of the irresistible impulse due to lack or disease of mind and that therefore the defendant should not be subject to punishment for the doing of an act which he had not the power to resist even though he had sufficient mental capacity to know that what he was doing was wrong and in violation of law.

At the outset it must be understood that if we accept the doctrine of irresistible impulse as a defense, we must, as a consequence, agree that when properly established, it will constitute a complete exoneration from the power of the state to impose any punishment whatever. Whatever criticism there is that has been directed at the law for failure to keep pace with the development of medical knowledge on the subject of mental diseases, has to do with the failure of the law, when imposing punishment, to make a distinction between the case of the defendant with sound mental capacity and one who is suffering from...