Opinion
Argued March 8, Affirmed April 24, 1968
Appeal from Circuit Court, Multnomah County.
PAUL R. HARRIS, Judge.
AFFIRMED.
R. Dale Kneeland, Portland, argued the cause and filed a brief for appellant.
Jacob B. Tanzer, Deputy District Attorney, Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, District Attorney, Portland.
Before McALLISTER, Presiding Justice, and SLOAN and DENECKE, Justices.
Defendant was charged with three related felonies committed in an armed assault and attempt to rape. He pleaded not guilty by reason of insanity, and was convicted by a jury. He appeals from concurrent sentences of ten years on each count.
Defendant by his assignment of error urges that we require the state to prove beyond a reasonable doubt that the defendant was sane, and that we modify the M'Naghten rule as a test of responsibility in criminal cases. Defendant's first contention is foreclosed by ORS 136.390. 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 ALR2d 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 LEd 1302, reh. den. 344 U.S. 848, 73 S Ct 4, 97 LEd 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).
ORS 136.390 "When the commission of the act charged as a crime is proved and the defense sought to be established is the insanity of the defendant, the same must be proved by the preponderance of the evidence."
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.
ORS 136.410 "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."
Affirmed.