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Opinion of the Court.

wages. Congress has gone so far in expressly listing such deductions and set-offs that it is a fair inference that those not listed may not be made. It thus remains for the courts to determine only what are the deductions or setoffs for derelictions of duty that are listed by Congress, rather than to determine which of the deductions or setoffs once known to the general maritime law Congress has failed to exclude. Congress, in effect, has excluded all of them except those which it has listed affirmatively." Accordingly, the judgment is



12 For comparable reasons, petitioner's counterclaim may not be set off against the allowance made to respondent for transportation to his port of signing on. That allowance is proportionately as important to him and to his welfare as is the balance due him for earned wages.

994084 O-52-54

343 U.S.




No. 176. Argued January 29, 1952.-Decided June 9, 1952. In a criminal prosecution in an Oregon state court on an indictment for murder in the first degree, appellant pleaded not guilty and gave notice of his intention to prove insanity. Oregon statutes required him to prove his insanity beyond a reasonable doubt and made a "morbid propensity" no defense. Appellant was found guilty by a jury and was sentenced to death. Held: These statutes did not deprive appellant of life and liberty without due process of law in violation of the Fourteenth Amendment of the Federal Constitution. Pp. 791-802.

1. The trial judge's instructions to the jury, and the charge as a whole, made it clear that the burden was upon the State to prove all the necessary elements of guilt, of the lesser degrees of homicide as well as of the offense charged in the indictment. Pp. 793-796.

2. The rule announced in Davis v. United States, 160 U. S. 469, that an accused is "entitled to an acquittal of the specific crime charged if upon all the evidence there is reasonable doubt whether he was capable in law of committing the crime," established no constitutional doctrine but only the rule to be followed in federal courts. P. 797.

3. Between the Oregon rule requiring the accused, on a plea of insanity, to establish that defense beyond a reasonable doubt, and the rule in effect in some twenty states, which places the burden on the accused to establish his insanity by a preponderance of the evidence or some similar measure of persuasion, there is no difference of such magnitude as to be significant in determining the constitutional question here presented. P. 798.

4. That a practice is followed by a large number of states is not conclusive as to whether it accords with due process, but may be considered in determining whether it "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." P. 798.

5. The instant case is not one in which it is sought to enforce against the State a right which has been held to be secured to defendants in federal courts by the Bill of Rights. Pp. 798-799.

6. Oregon's policy with respect to the burden of proof on the issue of sanity cannot be said to violate generally accepted concepts of basic standards of justice. P. 799.


Opinion of the Court.

7. Tot v. United States, 319 U. S. 463, does not require a different conclusion from that here reached. P. 799.

8. The contention that the instructions to the jury in this case may have confused the jury as to the distinction between the State's burden of proving premeditation and the other elements of the crime charged and appellant's burden of proving insanity, cannot be sustained. P. 800.

9. Due process is not violated by the Oregon statute which provides that a "morbid propensity to commit prohibited acts, existing in the mind of a person, who is not shown to have been incapable of knowing the wrongfulness of such acts, forms no defense to a prosecution therefor." Pp. 800-801.

10. The "irresistible impulse" test of legal sanity is not "implicit in the concept of ordered liberty"; and due process does not require the State to adopt that test rather than the "right and wrong" test. Pp. 800-801.

11. The trial court's refusal to require the district attorney to make one of appellant's confessions available to his counsel before trial did not deny due process in the circumstances of this case. Pp. 801-802.

190 Ore. 598, 227 P. 2d 785, affirmed.

Appellant's conviction of murder, challenged as denying him due process in violation of the Fourteenth Amendment, was affirmed by the State Supreme Court. 190 Ore. 598, 227 P. 2d 785. On appeal to this Court, affirmed, p. 802.

Thomas H. Ryan argued the cause for appellant. With him on the brief was Harold L. Davidson.

J. Raymond Carskadon and Charles Eugene Raymond argued the cause for appellee. With them on the brief was George Neuner, Attorney General of Oregon.

MR. JUSTICE CLARK delivered the opinion of the Court. Appellant was charged with murder in the first degree. He pleaded not guilty and gave notice of his intention to prove insanity. Upon trial in the Circuit Court of

343 U.S.

Opinion of the Court.

Multnomah County, Oregon, he was found guilty by a jury. In accordance with the jury's decision not to recommend life imprisonment, appellant received a sentence of death. The Supreme Court of Oregon affirmed. 190 Ore. 598, 227 P. 2d 785. The case is here on appeal. 28 U. S. C. § 1257 (2).

Oregon statutes required appellant to prove his insanity beyond a reasonable doubt and made a "morbid propensity" no defense.' The principal questions in this appeal are raised by appellant's contentions that these statutes deprive him of his life and liberty without due process of law as guaranteed by the Fourteenth Amendment.

The facts of the crime were revealed by appellant's confessions, as corroborated by other evidence. He killed a fifteen-year-old girl by striking her over the head several times with a steel bar and stabbing her twice with a hunting knife. Upon being arrested five days later for the theft of an automobile, he asked to talk with a homicide officer, voluntarily confessed the murder, and directed the police to the scene of the crime, where he pointed out the location of the body. On the same day, he signed a full confession and, at his own request, made another in his own handwriting. After his indictment, counsel were appointed to represent him. They have done so with diligence in carrying his case through three courts.

One of the Oregon statutes in question provides:

"When the commission of the act charged as a crime is proven, and the defense sought to be established is the insanity of the defendant, the same must be proven beyond a reasonable doubt. .

1 Ore. Comp. Laws, 1940, §§ 26-929, 23-122.

2 Id., § 26-929.



Opinion of the Court.

Appellant urges that this statute in effect requires a defendant pleading insanity to establish his innocence by disproving beyond a reasonable doubt elements of the crime necessary to a verdict of guilty, and that the statute is therefore violative of that due process of law secured by the Fourteenth Amendment. To determine the merit of this challenge, the statute must be viewed in its relation to other relevant Oregon law and in its place in the trial of this case.

In conformity with the applicable state law, the trial judge instructed the jury that, although appellant was charged with murder in the first degree, they might determine that he had committed a lesser crime included in that charged. They were further instructed that his plea of not guilty put in issue every material and necessary element of the lesser degrees of homicide, as well as of the offense charged in the indictment. The jury could have returned any of five verdicts: (1) guilty of murder in the first degree, if they found beyond a reasonable doubt that appellant did the killing purposely and with deliberate and premeditated malice; (2) guilty of murder in the second degree, if they found beyond a reasonable doubt that appellant did the killing purposely and maliciously, but without deliberation and premeditation; (3) guilty of manslaughter, if they found beyond a reasonable doubt that appellant did the killing without malice or deliberation, but upon a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible; (4) not guilty, if, after a careful considera

3 Id., §§ 26-947, 26-948.

Six possible verdicts were listed in the instructions, guilty of murder in the first degree being divided into two verdicts: with, and without, recommendation of life imprisonment as the penalty. Since the jury in this case did not recommend that punishment, the death sentence was automatically invoked under Oregon law. Id., § 23-411.

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