Opinion
Argued and Submitted March 19, 1970.
Opinion Withdrawn May 28, 1970.
William G. Whitney, Portland, argued the cause and filed the brief for appellant.
Thomas H. Denney, Asst. Atty. Gen., Salem, for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.
Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.
LANGTRY, Judge.
Defendant appeals from conviction of sodomy, ORS 167.040. Defendant pleaded not guilty by reason of insanity. Preceding selection of a jury, the court heard testimony from defendant and two psychiatrists who had examined defendant as a basis from which to determine whether the defendant understood the nature of the proceedings and was able to assist in his own defense. Then the court found 'that this man does understand sufficiently the nature of the proceedings and is sufficiently able to assist * * * in his defense so that the trial should proceed.' Defendant assigns this finding as error. The thrust of the argument in defendant's brief is that the court should not have applied the M'Naghten rule. The attack is actually upon ORS 136.410, which is a statutory application of the M'Naghten rule:
'A morbid propensity to commit a prohibited act, existing in the mind of a person who is not shown to have been incapable of knowing the wrongfulness of the act, forms no defense to a prosecution for committing the act.'
The most recent attack similar to that urged in this case on the M'Naghten rule was rejected by the Oregon Supreme Court in State v. Haggblom, 249 Or. 676, at page 677, 439 P.2d 1019 at page 1019 (1968), where the court said:
'* * * The M'Naghten rule question has been fully considered by our prior decisions, to which we adhere. State v. Garver, 190 Or. 291, 298, 225 P.2d 771, 27 A.L.R.2d 105 (1950); State v. Leland, 190 Or. 598, 638, 227 P.2d 785 (1951), aff'd 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302, reh. den. 344 U.S. 848, 73 S.Ct. 4, 97 L.Ed. 659; State v. Wallace, 170 Or. 60, 79, 131 P.2d 222 (1942); State v. Riley, 147 Or. 89, 100, 30 P.2d 1041 (1934); State v. Grayson, 126 Or. 560, 575, 270 P. 404 (1928); State v. Hassing, 60 Or. 81, 86, 118 P. 195 (1911).
'As stated recently in State v. Schroeder, 249 Or. 469, 438 P.2d 1023 (March 27, 1968), we think the advisability of modifying ORS 136.410 is a legislative question.'
We are bound by this decision.
Affirmed.