"When a defendant PLEADS INSANITY, as prescribed in Section 336, the court in which the indictment is pending, instead of proceeding with the trial of the indictment, may appoint a commission of not more than three disinterested persons to examine him and report to the court as to his insanity at the time of the commission of the crime."
If a defendant intends to prove himself irresponsible for his offence, why should he not be compelled to enter a specific plea to that effect? Once he has entered that plea, the law as it stands just quoted will do the rest. No reason has been brought to the attention of the writer why the admission of any evidence upon the defendant's trial tending to show that he was mentally irresponsible at the time of committing the crime should not be made contingent upon the defence of insanity having been specifically pleaded either at the time of his arraignment or later by substitution for or in conjunction with the plea of "not guilty." This would deprive him of no constitutional right whatever. There is no legal necessity of permitting an accused to prove insanity under a general answer of "not guilty." Then upon his own plea that he had been insane he could instantly be committed to some place of observation where a permanent medical board of inquiry could be given full opportunity to examine him and study his case with a view to determining his present and past mental condition. He would still have in prospect his regular jury trial, but if this board found him at the present time insane, the court could immediately commit him to an asylum pending recovery, precisely as under the present procedure, while if they found him sane at the present time, but reported that, in their opinion (whatever test, "medical" or "legal," they might have applied), he was irresponsible at the time he committed the crime, it is unlikely that any prosecutor would bring him to trial. If, however, they reported that he was not only sane, but had been sane at the time of his crime, it is probable that any proposed defence of insanity would be abandoned, while if it was still urged by the accused, the opinion of such a board would carry far greater weight at the ultimate trial of the case than the individual opinions of experts retained and paid by either side for that particular occasion only, and having had only a comparatively limited opportunity for examination. At any rate, if the court called in the services of such a board of medical judges to assist as amici curie in determining the defendant's condition, while their opinion would not be conclusive upon the jury, it would at least do away with the present lamentable necessity of learned men answering "yes" or "no" to a hypothetical question fifty thousand words long, when the most superficial personal examination of the accused would settle the matter definitely in their minds. Such a procedure is in general use in Germany and other continental countries, and is likewise substantially followed in Massachusetts, Maine, Vermont, and New Hampshire.*
* Another equally efficacious means of dealing with the matter would
be to substitute, upon a defendant's plea of insanity, a full jury of
experts—like any "special" jury—for the ordinary petit jury.
There is good reason to hope that we may soon see in all the states adequate provision for preliminary examination upon the plea of insanity, and a new test of criminal responsibility consistent with humanity and modern medical knowledge. Even then, although murderers who indulge in popular crime will probably be acquitted on the ground of insanity, we shall at least be spared the melancholy spectacle of juries arbitrarily committing feeble-minded persons charged with homicide to imprisonment at hard labor for life, and in a large measure do away with the present unedifying exhibition of two groups of hostile experts, each interpreting an archaic and inadequate test of criminal responsibility in his own particular way, and each conscientiously able to reach a diametrically opposite conclusion upon precisely the same facts.
CHAPTER XI. The Mala Vita in America
There are a million and a half of Italians in the United States, of whom nearly six hundred thousand reside in New York City—more than in Rome itself. Naples alone of all the cities of Italy has so large an Italian population; while Boston has one hundred thousand, Philadelphia one hundred thousand, San Francisco seventy thousand, New Orleans seventy thousand, Chicago sixty thousand, Denver twenty-five thousand, Pittsburg twenty-five thousand, Baltimore twenty thousand, and there are extensive colonies, often numbering as many as ten thousand, in several other cities.
So vast a foreign-born population is bound to contain elements of both strength and weakness. The north Italians are molto simpatici to the American character, and many of their national traits are singularly like our own, for they are honest, thrifty, industrious, law-abiding and good-natured. The Italians from the extreme south of the peninsula have fewer of these qualities, and are apt to be ignorant, lazy, destitute, and superstitious. A considerable percentage, especially of those from the cities, are criminal. Even for a long time after landing in America, the Calabrians and Sicilians often exhibit a lack of enlightenment more characteristic of the Middle Ages than of the twentieth century.
At home they have lived in a tumble-down stone hut about fifteen feet square, half open to the sky (its only saving quality); in one corner the entire family sleeping in a promiscuous pile on a bed of leaves; in another a domestic zoo consisting of half a dozen hens, a cock, a goat, and a donkey. They neither read, think, nor exchange ideas. The sight of a uniform means to them either a tax-gatherer, a compulsory enlistment in the army, or an arrest, and at its appearance the man will run and the wife and children turn into stone. They are stubborn and distrustful. They are the same as they were a thousand or more years gone by.
When the writer was acting as an assistant prosecutor in New York County, a young Italian, barely twenty years of age, was brought to the bar charged with assault with intent to kill. The complainant was a withered Sicilian woman who claimed to be his wife. Both spoke an almost unintelligible dialect. The case on its face was simple enough. An officer testified that on a Sunday morning in Mulberry Bend Park, at a distance of about fifty feet from where he was standing, he saw the defendant, who had been walking peaceably with the complaining witness, suddenly draw a long and deadly looking knife and proceed to slash her about the head and arms. It had taken the officer but a moment or two to seize the defendant from behind and disarm him, but in the meantime he had inflicted some eleven wounds upon her body. No explanation had been offered for this terrible assault, and the complainant had appeared involuntarily before the Grand jury and afterward had to be kept in the House of Detention as a hostile witness. The woman, who appeared to be about fifty years old, was sworn, and on being questioned stated that she had been married to the defendant in Sicily three years before. She declined to admit that he had attacked or harmed her in any way, constantly mumbling: "He is my husband. Do not punish him!"