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January 18, 1952


The opinion of the court was delivered by: STEWART

The defendant was indicted on 15 counts of sending obscene, lewd and lascivious matter through the United States mail. A jury, on October 30, 1951, found the defendant guilty on all counts as indicted. Defendant has moved for a new trial for the following general reasons:

1. The verdict is contrary to the weight of the evidence.

 2. The verdict is not supported by substantial evidence.

 3. The verdict was contrary to law.

 The only issue requiring our discussion relates to the defense of insanity. It is contended by counsel for defendant that the record discloses such substantial doubt of defendant's sanity that the verdict should be set aside and a new trial granted. At the trial, a psychiatrist testified that he did not believe that the defendant had, at the time of the trial, 'the capacity or judgment to determine in the ordinary, normal way what is right and what is wrong' (Transcript, p. 83). In addition, the psychiatrist testified that he was of the opinion based on a recent examination of the defendant and on the writings and past history of the defendant that the defendant's present condition had existed for several years and that it did exist at the time of the commission of the offense.

 Whenever insanity is put in issue in a criminal case, the burden is on the accused to overcome the presumption of sanity by evidence sufficient to create a reasonable doubt as to his mental capacity. Davis v. U.S., 1895, 160 U.S. 469, 16 S. Ct. 353, 40 L. Ed. 499; Holloway v. U.S., 1945, 80 U.S.App.D.C. 3, 148 F.2d 665, certiorari denied 1948, 334 U.S. 852, 68 S. Ct. 1507, 92 L. Ed. 1774. Once that is done, the burden is on the prosecution to establish the sanity of the accused and in such a situation, the Court must instruct the jury that in order to convict they must believe beyond a reasonable doubt that the defendant was sane at the time of the offense. Davis v. U.S., supra; Holloway v. U.S., supra. Such an instruction was given in this case. The defendant does not object to the sufficiency of the instruction given; rather, he argues that the jury neglected to follow it and that, on the evidence in this case, the jury should have returned a verdict of not guilty by reason of insanity.

 In the case of United States ex rel. Wing v. Commonwealth, D.C.W.D. Pa. 1950, 90 F.Supp. 208, at page 211, Judge Gourley of this Court has outlined the tests to be applied in determining when insanity constitutes a legal defense to the commission of a crime, as follows:

 'In order for insanity to be a legal defense to the commission of a crime there must be:

 '(a) Such a perverted and deranged condition of the mental and moral faculties as to render a person incapable of distinguishing between right and wrong; or

 '(b) he must be unconscious and unaware at the time of the nature of the act he is committing; or

 '(c) where, though conscious of it and able to distinguish between right and wrong and know that the act is wrong, yet his will, or the governing power of of his mind, has been otherwise than voluntarily, so completely destroyed that his actions are not subject to it, but are beyond his control.'

 These tests differ from those applied by psychiatrists in determining insanity. In Holloway v. U.S., supra, Judge Arnold discussed and compared the tests of criminal responsibility with the medical tests for insanity as follows in 148 F.2d 667: 'A complete reconciliation between the medical tests of insanity and the moral tests of criminal responsibility is impossible. The purposes are different; the assumptions behind the two standards are different. For that reason the principal function of a psychiatrist who testifies on the mental state of an abnormal offender is to inform the jury of the character of his mental disease. The psychiatrist's moral judgment reached on the basis of his observations is relevant. But it cannot bind the jury except within broad limits. To command respect criminal law must not offend against the common belief that men who talk rationally are in most cases morally responsible for what they do.'

 Since, as stated above, the defendant does not complain in regard to the Court's charge as it relates to the defense of insanity, the question is simply whether the jury correctly applied the instructions which the Court gave, and, more specifically, whether in view of the testimony of Dr. Pearson, the psychiatrist called on behalf of the defendant, the jury was warranted in reaching a guilty verdict. We believe that ...

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