Com. v. McHoul

• Decision Date: 16 May 1967
• Citation: 352 Mass. 544,226 N.E.2d 556
• Parties: COMMONWEALTH v. James N. McHOUL, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 556

226 N.E.2d 556

352 Mass. 544

COMMONWEALTH v. James N. McHOUL, Jr.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 6, 1967.

Decided May 16, 1967.

William P. Homans, Jr., Boston (Ronald J. Chisholm, Winchester, Steven J. Comen and Grover G. Jackson, Boston, with him), for defendant.

John A. Pino, Asst. Dist. Atty. (James M. Kickham, Legal Asst. to the Dist. Atty., with him), for the Commonwealth.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, SPIEGEL and REARDON JJ.

WHITTEMORE, Justice.

The issues on this appeal under the provisions of G.L. c. 278, §§ 33A--33G, as amended, relate to the defence of insanity. The defendant, McHoul, was convicted and sentenced for two crimes committed about 2 P.M. on March 29, 1966--assault with intent to rape, and breaking and entering a dwelling house with intent to commit rape. The defendant at the time was a patient at Boston State Hospital. About 2:25 P.M. on March 29, the defendant said to a male practical nurse at the hospital, who asked where his trousers were, 'I want to tell you something. I did something wrong. I raped a woman.' Counsel who argued the case on appeal did not represent the defendant at the trial.

1. An expert for the Commonwealth, Dr. Malcolm Rosenblatt, testified that he had an opinion as to the sanity of the defendant which was, 'That according to the M'Naghten rule ¹ he was legally sane.' The defendant moved to have the answer struck. The judge ruled, 'I will strike out the part about the M'Naghten rule. I will allow the last part to stand.' The defendant excepted 'to the part of the answer the Court did not strike.'

The rule which has prevailed in this Commonwealth was first expressed by Shaw, C.J., in Commonwealth v. Rogers, 7 Metc. 500, 501--502. A more recent statement, including a quotation from the Rogers case, is in Commonwealth v. MeCann, 325 Mass. 510, 515, 91 N.E.2d 214, 217: 'One whose mental condition is such that he cannot distinguish between right and wrong is not responsible for his conduct, and neither is one who has the capacity to discriminate between tight and wrong but whose mind is in such a diseased condition that his reason, conscience and judgment are overwhelmed by the disease and render him incapable of resisting and controlling an impulse which leads to the commission of a homicide. In such an instance, the homicide would be 'not the act of a voluntary agent, but the involuntary act of the body, without the concurremce of a mind directing it. '' ²

In the light of this rule, the judge's action in respect of Dr. Rosenblatt's answer was prejudicially erroneous. The witness did not testify that in his view, McHoul, according to Massachusetts law, was sane. It is beside the point whether he would have. He did not testify in respect of irresistible impulse. The judge's ruling left before the jury a statement, attributable to a qualified physician, not in fact made by him. It presented to the jury, in terms conclusive of the issue that they alone were to pass on, an unsupported statement.

2. The defendant excepted to the refusal of the judge to charge in the words of § 4.01 of the American Law Institute's Model Penal Code, Proposed Official, Draft (1962) p. 66: 'Section 4.01 Mental Disease or Defect Excluding Responsibility. (1) A person is not responsible for criminal conduct if at time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law.'

For the reasons stated below (point 2 (b)), we regard the Code definition as an evolutionary restatement of our rule rather than a substantively new rule, which, of course, it is in those jurisdictions that adopt its dual test to replace the single cognitive test of the M'Naghten rule. The requests in the language of § 4.01 were fully adequate to direct attention to the dual test of criminal responsibility as it has been stated in our cases. In the light of those cases an instruction in Model Penal Code terms was not required, and a correct instruction would have been in some such words as are quoted in point 1, supra, from the Mc,Cann case. The instruction given was not, however, in words or substance, our dual test. That no exception was taken to the charge as given does not exclude our appraisal of it as not meeting the implicit requirement of the defendant's requests at least to state our rule in its accepted wording. Furthermore, the error is related to the error discussed in point 1 for which there must be in any event a reversal. We do not decide whether in other circumstances we would be warranted in reviewing the charge. See Commonwealth v. Conroy, 333 Mass. 751, 757, 133 N.E.2d 246. We look first at the definition of insanity as stated by the judge to the jury.

(a) The judge charged the jury substantially in terms of the M'Naghten rule, saying '(E)very man is presumed to be sane * * * until the contrary be proved to your satisfaction. To establish a defense upon the fround of insanity, it must be clearly proved that at the time of the committing of 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), that he did not know he was doing what was wrong. The knowledge required by the 'right and wrong' test is the capacity to distinguish between right and wrong; not in the abstract, but as to the particular act which constituted the crime charged. If such capacity existed at the time of the forbidden act, the accused is fully responsible though in other respects he may have been insane. If such capacity did not exist at the time, the accused is then not responsible.' He then added, 'An irresistible impulse to commit a crime in and of itself is no defense to its commission unless it is accompanied by an inability to distinguish between right and wrong and * * * (a lack of) awareness of the nature and quality of the acts committed at the time of their commission.'

This instruction wrongly stated that the absence of awareness of wrongdoing must accompany irresistible impulse. We reject the Commonwealth's suggestion that the defect in the charge may be overlooked because the evidence did not show conduct that was irresistibly impelled. The 'burden of proof is on the Commonwealth to prove the defendant mentally responsible for crime (Commonwealth v. Johnson, 188 Mass. 382, 388, 74 N.E. 939).' Commonwealth v. Clark, 292 Mass. 409, 415, 198 N.E.641, 645. Hence the issue was for the jury under proper instructions. See Commonwealth v. Soaris, 275 Mass. 291, 298, 301--302, 175 N.E. 491.

We do not pause to consider the defendant's contention that the charge also erred in shifting from the Commonwealth the burden of establishing guilt beyond a reasonable doubt. See Commonwealth v. Johnson, 188 Mass. 382, 388, 74 N.E. 939; Commonwealth v. Hartford, 346 Mass. 482, 489--490, 194 N.E.2d 401; Davis v. United States, 160 U.S. 469, 481--483, 16 S.Ct. 353, 40 L.Ed. 499; Weihofen, Mental Disorder as a Criminal Defense, c. V.

(b) There has been widespread agreement on the need for a restatement in modern terms of the dual definition of criminal irresponsibility. For reasons to be stated we believe the Model Penal Code has met this need and has done so in language which will not make the dual test in this jurisdiction a substantially different rule in practice.

In Commonwealth v. Chester, 337 Mass. 702, 713, 150 N.E.2d 914, 920, we said, 'We do not labor under the illusion that the rule of Commonwealth v. Rogers is entirely satisfactory. Indeed, in this troublesome field there will be serious difficulties in any rule that can be formulated. * * * We, of course, intend no intimation that the rule tentatively proposed (now finally) by the American Law Institute in its Model Penal Code and which has been recommended favorably by a majority of the Judicial Council ³ * * * is not a desirable one, but no question touching that rule is before us.' ⁴

In Commonwealth v. Hartford, 346 Mass. 482, 491, 194 N.E.2d 401, we rejected the rule of United States v. Currens, 290 F.2d 751 (3d Cir.). That, however, was not a disapproval of the Code definition, for the Currens case, although accepting in substance the second part of the rule, rejected the cognitive element. See fn. 3, supra.

Advantages of the Code definition are stated in the opinion in United States v. Freeman, 357 F.2d 606, 620--621 (2d Cir.), whch was approved by four judges of the circuit in addition to the three who were sitting. It reversed a conviction following a trial in which the M'Naghten rule had been applied, and adopted the Code definition. ⁵

Perhaps the single greatest point made for the Code definition is that inder it, experts will be unrestricted in stating all that is relevant to the defendant's mental illness. This advantage, however, already exists under our rule, properly applied. We indicated in Commonwealth v. Harrison, 342 Mass. 279, 296--297, 173 N.E.2d 87, 99, that the rule of the Rogers case is to be applied to the admission of expert testimony 'in terms of modern psychiatric concepts' so as to avoid the 'confusion which may result from references to differences.' between legal insanity and mental illness.' This means that experts experienced in the study and treatment of the mentally ill may testify fully as to the nature and extent of impairment of defendants' mental faculties as well as their observations or other bases for their conclusions. ⁶ See, for cases where evidence appears to have been admitted in general conformity with the foregoing, Commonwealth v. McCann, 325 Mass. 510, 514--515, 91 N.E.2d 214; Commonwealth v. Lundin, 326 Mass. 551, 556--558, 95 N.E.2d 661; Commonwealth v. Chapin, 333 Mass. 610, 619--627, 132 N.E.2d 404; Commonwealth v. Chester, 337 Mass. 702, 707--710, 150 N.E.2d 914; ...