Friday, Nov. 30, 1962
University Daily Kansan
Page 3
Andrews Condemned by 119-Year-Old Rule
By Bernard Henrie
For former KU student Lowell Lee Andrews, a discussion of the M'Naughten Rule which sent him to the gallows — rather than to a mental institution — comes too late.
The 119-year-old M'Naughton Rule is used in Kansas to establish criminal responsibility. A criminal is adjudged sane, and therefore responsible for his criminal act, if it can be established that he knew what he was doing at the time of the act. In other words, if he knew the difference between right and wrong he is legally sane.
THE "RIGHT AND WRONG" test grew from the 1843 trial of Daniel M'Naughten in England. M'Naughten had attempted to assassinate the Prime Minister, but he killed the Minister's private secretary instead. When M'Naughten was acquitted, the judges involved were called before the House of Lords to explain their conduct. Their answers to a series of questions became known as the M'Naughten Rules.
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Judge Biggs, in the Currens' case, traced the "right and wrong" concept to a much earlier date in English history. He found a law book printed in 1620 which outlined, in essence, the MNaughten Rule. Included in the book was a chapter which described the means of detecting witches and wizards by witchmarks, and telling how their familiars might be uncovered.
Mr. Justice Cardoza said of the M'Naughten test in an address before the New York Academy of Medicine in 1928:
"EVERYONE CONCEDES that the present definition of insanity has little relation to the truths of mental life. . . If insanity is not to be a defense, let us say so frankly and even brutally, but let us not mock ourselves with a definition that palts with realism."
Richard C. Allen, professor of law at Washburn University, along with fellow Washburn law professor James Ahrens, took the Andrews case on appeal.
Allen, writing in December, 1961, said:
"I (am) seeking to raise certain . . . questions with regard to the case, including that of the propriety of applying this ancient
test (the M'Naughten test); one which was originally designed, and through the years has been applied, to permit the imposition of criminal punishment — including execution — for the 'offense' of being mentally ill."
AND LOWELL LEE ANDREWs was mentally ill. In essence, the finding of the doctors who examined him over a period of several months was that Andrews was, at the time of the examination and at the time of his criminal act, suffering from a severe mental and emotional disturbance denominated "schizophrenic reaction," and that the tragedy perpetrated by Andrews was the direct result of this condition.
At the time of the trial, the jury was not permitted to be informed that if Andrews were acquitted by reason of insanity, he would not go free but would go to the State Hospital at Larned.
Instead, the jury was informed
that if they found him guilty of first degree murder, they could fix the penalty at death or life imprisonment. The jury decided that Andrews was sane, inasmuch as he knew right from wrong at the time of the crime. The jury's verdict was that Andrews should be hanged.
PROF. ALLEN+
"That the 'right and wrong' test does not offer a fair standard for making the difficult decisions with which juries are charged is a view which has been shared for at least the last hundred years by responsible and informed doctors, lawyers and behavioral and social scientists."
Sheldon Glueck, sociologist and professor of law at Harvard Law School:
"Under the old M'Naughten's case law . . . persons who are truly ill in mind must be stigmatized and punished as responsible criminals. They often know right
Worth Repeating
"To develop the student's ability to deal with ideas, it is desirable to acquaint him with a variety of views on the same subject. Lectures and reading for his courses provide him with a part of this material. Visiting lecturers who present divergent views add more...
"Administrations past and present have encouraged this clash of ideas as an essential part of higher education. By doing so, they have incurred the criticism of those who feel that the university should merely teach the students the "correct" opinions: to wit, the critics'. To yield to such pressures would be to abandon the essential function of a university in a democratic society.
—J. D. A. Ogilvy, Professor of English, University of Colorado
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from wrong, but so do most inmates of hospitals for the mentally ill. . ."
BUT WHAT OF the defenders of the M-Naughten philosophy? The Kansas Supreme Court said in its opinion:
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out blame-worthiness," as Prof. Allen writes. In addition, it seems clear that the M'Naughten Rule is kept for reasons of tradition — a tradition which has, in the light of post-Freudian psychology and Twentieth Century enlightenment, been shown bankrupt.
Mr. Justice Holmes:
"It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV."
"The law recognizes no form of insanity, although the mental faculties may be disordered or deranged, which will furnish one immunity from punishment for an act declared by the law to be criminal, so long as the person committing the act bad the capacity to know what he was doing and the power to know that his act was wrong. . .."
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The Court's position is not envious. It elects to perpetuate a standard which "admittedly imposes criminal punishment with-
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