The opinion
Mr. JUSTICE HAYES, specially concurring:
I concur with tire opinion of the court. I wish, however, to develop the matter of an insane delusion as the specific mental disease or mental defect on the basis of which a defendant in a criminal prosecution interposes the affirmative defense of insanity at the time of the commission of the offense for which he is being prosecuted. I wish to do so because we have been cited to no Illinois case in which the insanity defense has been predicated upon an insane delusion as the specific mental defect or mental disease, nor have I been able to find any such Illinois case.
When, in a criminal prosecution, the defendant interposes the affirmative defense of insanity at the time of the commission of the criminal offense, the opinion of the court notes that the defendant must initially make a showing of his alleged insanity sufficient to rebut the presumption of sanity; if he does so, the State then has the burden of proving beyond a reasonable doubt that the defendant was legally sane at the time he committed the criminal offense. Ill. Rev. Stat. 1973, ch. 38, par. 3 — 2.
In the instant case, Dr. Ziporyn, a psychiatrist, testified for defendant as an expert witness in defendant’s initial showing of insanity. Dr. Ziporyn had no occasion to deal with the matter of an insane delusion because, in response to defense counsel’s hypothetical question, the doctor stated that it was his opinion that the hypothetical person was suffering from tire mental disease of agitated depression which, while it did not impair his cognitive ability mentally to appreciate the criminality of his conduct, yet rendered him unable to conform his conduct to the requirements of the law because it rendered him unable to control his emotional impulses. In the doctor’s opinion, the truth or falsity of defendant’s suspicions as to the existence of a romantic relationship between his wife and Mr. Taylor and as to her pregnancy by him was irrelevant; granted that he entertained such suspicions or beliefs, the only relevant factor was his ability to control the emotional impulses resulting from the intensity of his suspicions or beliefs.
Dr. Kelleher, a psychiatrist, then testified for the State as its expert witness. In response to the prosecutor’s hypothetical question, Dr. Kelleher was of the opinion that, under the totality of the circumstances, the hypothetical person was not suffering from any mental defect or mental disease, but merely from a personality disorder; he was suffering from an emotional reaction, not from a neurotic depression. On cross-examination, defense counsel first asked for Dr. Kelleher’s opinion as to whether the hypothetical person could have been laboring under an insane delusion which constituted the mental disease or mental defect of paranoia. In Dr. Kelleher’s opinion the totality of the circumstances did not warrant that finding. Dr. Kelleher defined an insane delusion as a persistent false belief having no basis in reality, which belief will nevertheless not yield to evidence of its falsity and to logical reason.
Dr. Reifman, a psychiatrist, was then called by defendant to testify in “surrebuttal.” In response to defense counsel’s hypothetical question, the doctor stated that the facts upon which the hypothetical question was based were insufficient to enable him to form any opinion as to whether die hypothetical person was suffering from any mental disease or mental defect. On cross-examination and then on redirect examination, Dr. Reifman had occasion to discuss the matter of insane delusions. While an insane delusion indicates mental illness and an impairment of judgment, the doctor was unable to form an opinion as to whether the hypothetical person was laboring under an insane delusion because of insufficient facts in the hypothetical question. A person laboring under an insane delusion might or might not be able to appreciate the criminality of his conduct. A delusion is defined as a belief which would not be deemed factual by one’s peers. The deluded person is suffering from a mental disease called paranoid schizophrenia. Paranoia is a break away from reality to such a degree as to indicate a mental illness.
The trial court itself questioned both Dr. Kelleher and Dr. Reifman as to whether the hypothetical person could have been laboring under an insane delusion at the time of the shootings. The trend of the court’s questioning clearly indicates that the court, working from the definitions of Dr. Kelleher and Dr. Reifman, could not understand how, in view of what the hypothetical person was proved to have personally observed on the night of the shootings and before the shootings occurred, the hypothetical person’s belief as to the existence of a romantic relationship between his wife and Mr. Taylor and as to her pregnancy by him could possibly constitute an insane delusion. Later, in finding that the State had proved beyond a reasonable doubt that defendant was not insane at the time he committed the charged murder, the trial court, for the reason just stated, expressed its opinion that the said belief could not have constituted an insane delusion.
With the above preamble, I wish to make the following observations.
(1) The definition of an insane delusion, for tire purpose of constituting a specific mental disease or mental defect as the basis for an affirmative defense of insanity in a criminal prosecution, should be the same definition as that used by Illinois courts in actions to contest a will on the specific ground of insane delusion, as distinguished from the ground of general mental testamentary incapacity. In a will contest on the specific ground of insane delusion, general mental testimentary capacity is conceded; the attack is focused solely on the existence of a belief on the part of the testator which has caused the testator to include or to omit a testamentary donative provision which he would otherwise have respectively omitted or included. In these will contests, an insane delusion is defined as a false belief entertained by the testator which is not supported by any shred of evidence and which no rational person, in the absence of evidence, would believe to be true. (Sterling v. Dubin (1955), 6 Ill. 2d 64, 77 , 126 N.E.2d 718 ; Ryan v. Deneen (1940), 375 Ill. 452, 457 , 31 N.E.2d 582 .) The egregious falsity of the belief is not the crucial factor; rather, the crucial factor is that the belief is not supported by any shred of evidence whatsoever.
Under that definition, the State in the instant case might contend that defendant’s belief as to a romantic relationship between his wife and Mr. Taylor and as to her pregnancy by him was not an insane delusion because it was supported by a shred of evidence, namely, defendant knew that his wife had separated from him and was considering filing for a divorce. From this evidence, defendant suspected and believed that his wife was romantically involved with another man who was Mr. Taylor, for which reason defendant, a few hours before the shootings, announced his intent to kill both his wife and Mr. Taylor. Since, however, at the time defendant first expressed his belief, there was no shred of verified evidence that another man was involved or that Mr. Taylor was that other man, defendant might contend that his specific belief, as initially formulated and expressed, was an insane delusion.
(2) Whether or not defendant’s belief, as initially formulated and expressed was an insane delusion, the trial court clearly was of the opinion that the belief was not an insane delusion at the time of the shootings because it had then been confirmed by at least a shred of evidence, namely, the verified personal observations of defendant on the night of, but prior to, the shootings. Whether a belief which, wheii initially .formulated and expressed, is an insane delusion can then lose its character as an insane delusion by reason of a subsequent shred of evidence which logically confirms that belief is a theory which, in my opinion, need not be, and is not, decided by the opinion of the court in this case.
(3) While I can find no Illinois criminal case which has dealt with the defense of insanity at the time of the offense by reason of the specific mental disease or mental defect of insane delusion, decisions in a few other States have done so. Mullins v. State (I960), 216 Ga. 183 , 115 S.E.2d 547 ; Coffee v. State (1944), 148 Tex. Crim. R. 71, 184 S.W.2d 278 ; Kennamer v. State (1936), 59 Okl. Crim. 146, 57 P. 2d 646 ; Horn v. Commonwealth (1942), 292 Ky. 587 , 167 S.W.2d 58 ; State v. Green (1931), 78 Utah 580 , 6 P. 2d 177 ; Kraus v. State (1922), 108 Neb. 331 , 187 KW. 895. See also 40 C.J.S. Homicide §267, at 1217 (1944).
All of these States require that the defendant must make a showing that (a) he was actually laboring under an insane delusion at the time he committed the offense for which he is being prosecuted, and that (b) the said offense was the result of that insane delusion. Precisely how the defendant is to make the showing that he was laboring under an insane delusion at the time he committed the offense is not clear.
In five of these six States, there is a third essential element of the defense: the delusion must relate to a fact which, if true, would constitute legal justification for the criminal offense committed. The Nebraska case does not require this third essential element if the insane delusion was such that it prevented the defendant from mentally appreciating the criminality of his conduct. In the instant case, none of the expert witnesses was of the opinion that, even assuming that the hypothetical person shot tire victims as the result of his insane delusion, the said insane delusion impaired his ability to appreciate the criminality of his conduct. Hence, under the test established in these other States for a successful defense of insanity based on insane delusion, tire defendant must establish that his insane delusion would, if true, have constituted legal justification for the homicides. Under our Illinois statutory provisions in respect of legal justification (Ill. Rev. Stat. 1973, ch. 38, pars. 7 — 1 through 7 — 14), it is clear that defendant’s belief in the instant case, even if assumed to be an insane delusion, would not, if true, have constituted legal justification for the homicides.