Did Jean Gianini know the quality of his act? On the stand, under cross-examination, the writer was led to express the opinion that he did. Later study of the problem and consideration of the circumstances leads to the conclusion that this was erroneous. Such knowledge implies mental capacity which is not possessed by a boy under twelve years of age. It involves experience; it involves abstraction, which is notoriously lacking in such persons. If there is one characteristic more noticeable than another among the high-grade imbeciles or morons, it is their failure to deal with abstract ideas; to draw generalizations from specific instances.
Did Pennington know the quality of his act? There is not the slightest evidence that he did. Indeed, in his case we may go farther and hold very probably that he did not even know the nature of his act. It is easily conceivable that he struck the man with the blackjack without knowing that he was committing murder, without knowing that he might kill him. His stupidity was clearly of such a character that it is a perfectly tenable position that he thought he was to strike the man and stun him until they could rob him and escape.
Did Tronson know the nature and quality of his act? Using revolvers as he did, it seems undeniable that he knew the nature. He was familiar with revolvers; he knew what they would do. He, undoubtedly, knew that he was killing Emma Ulrich. That he did not know the quality of his act is equally certain. She would not marry him, he did not want her to marry any one else, and he had no conception that he had no right to put her out of the way so that she could not marry another if she would not marry him.
Again, we might go further and deeper into the philosophy of the question, the logic and ethics of it. But these few considerations seem sufficient to make it of the highest probability that persons of a mental age under twelve years, like the normal boys or girls of the same age, do not know and cannot be expected to know the quality of their acts. And this is sufficient, because the law requires no more than a reasonable doubt, and there certainly is a very reasonable doubt as to whether such persons know the quality of an act of murder and know that it is wrong.
CHAPTER VI
THE PUNISHMENT FOR CRIMINAL IMBECILES
In the foregoing chapters we have discussed the problem involved in these murders from the standpoint of the law in order to show that even under the law, as it now exists, such persons are not guilty of murder in the first degree. In the present chapter, we propose to discuss the matter from another standpoint and from a different angle. It is not now a question of responsibility or of some kind of justice to be satisfied. Let us face the practical question of what is to be done in these cases.
After all, what we want is protection for society. We cannot have innocent people killed in accordance with the whim of the irresponsible. These imbeciles have killed innocent members of society. What shall the living do to prevent these particular persons from repeating the crime and to prevent other imbeciles from ever committing such a crime? This, of course, involves the whole problem of punishment or the treatment of the wrongdoer. Upon one thing everybody is agreed—we must make it impossible for these persons ever to do such a deed again. The surest way to accomplish this is to destroy them. Dead men commit no crimes. Society feels safe when a desperado is killed. If we can agree upon this solution, the problem is easily solved and further discussion is unnecessary. But society is not at one on this question. We are already seriously debating the question whether any wrongdoer should ever be officially executed. Indeed, many States have already decided that they should not be, and imprisonment for life has replaced capital punishment.