The opinion of the court was delivered by: LORD, III
An earlier petition by relator was dismissed without prejudice for failure to exhaust state remedies, see United States ex rel. Tate v. Russell, Misc. No. 69-412, August 28, 1969 (E.D. Pa., 1969). Since that time relator has filed and lost appeals in the Superior and Supreme Courts of Pennsylvania. Respondent does not dispute that relator has exhausted his state remedies.
Relator's alleged offenses took place between July, 1962 and April, 1963. On August 5, 1963, the Court of Common Pleas for Philadelphia County appointed a commission under the Mental Health Act which determined that relator was mentally ill and of criminal tendencies. Relator was not deemed to be able to stand trial until July, 1966. At the trial, without a jury, relator pleaded not guilty by reason of insanity and sanity was the only issue. The only evidence on behalf of relator was his medical record. Dr. Abraham Ornsteen, a member of the commission appointed to examine relator, was the only witness for the Commonwealth. However, his uncontradicted testimony was more than sufficient to establish that relator knew the nature and quality of his acts and the difference between right and wrong. (State Trial Record pp. 17, 18, 20-21, 51, 66).
Relator was found guilty of the offenses charged and was sentenced to 10 to 20 years. It is apparent from the trial record that the court and counsel followed Pennsylvania law which requires (1) the application of the M'Naghten test for insanity, and (2) the requirement that defendant prove his insanity by a preponderance of the evidence.
The application of the M'Naghten test was not a deprivation of the relator's due process rights. In Leland v. Oregon, 343 U.S. 790, 801, 72 S. Ct. 1002, 1008, 96 L. Ed. 1302 (1952), the Court stated that:
"* * * The science of psychiatry has made tremendous strides since the test was laid down in M'Naghten's case, but the progress of the science has not reached a point where its learning would compel us to require the states to eliminate the right and wrong test from their criminal law. Moreover, choice of a test of legal sanity involves not only scientific knowledge but questions of basic policy as to the extent to which that knowledge should determine criminal responsibility. * * *"
In United States ex rel. Phelan v. Brierly (C.A. 3, 1971), the court said:
"* * * Since a new trial may be held, however, we think it appropriate to state that unless the Supreme Court should overrule Leland v. Oregon, 343 U.S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302 (1952), this court would have no occasion to question the constitutionality of Pennsylvania's continued adherence to the M'Naghten Rules as the test for criminal responsibility."
We, of course, are similarly bound.
Relator's second contention is that the Pennsylvania rule requiring a defendant to prove his insanity by a preponderance of the evidence violates his 14th Amendment rights.
There is no doubt that the Pennsylvania rule is and has been for many years that:
"Since the sanity of an individual is always presumed, one who asserts insanity in defense of the commission of a crime has the burden of proving its existence by a fair preponderance of the evidence. * * * As stated in Commonwealth v. Iacobino, 319 Pa. 65, 178 A. 823 (1935), at 68, 'The presumption of sanity, which is the normal condition of man, "holds good, and is the full equivalent of express proof until it is successfully rebutted"'; * * * and again, at 69, 'Where mental capacity at the time of the act is an issue, the Commonwealth is aided by the presumption of sanity, it is not required to prove affirmatively mental capacity to commit the act.'" Commonwealth v. Updegrove, 413 Pa. 599, 198 A. 2d 534, 536 (1964).
There is equally no doubt that the trial judge applied this rule in his determination of relator's guilt. ...