THE CRIMINAL IMBECILE
From the description already given it will be seen that Roland Pennington is very different from Jean Gianini. Both are imbeciles, but each is an example of a special type. Gianini is of a nervous, impulsive, irritable, loquacious type, fond of show and excitement, a braggart and a coward, with an excellent memory, a great reader—particularly interested in stories of excitement and crime. Pennington, on the contrary, is a slow, dull, relatively stupid boy, of poor memory and slow perception. While having made the fifth grade in school work, he has done it slowly and with not so much success as in the case of Gianini. He is not so much given to talk or to showing off; is somewhat addicted to drink and is exceptionally fond of playing pool.
Gianini’s confession is colored by his desire to show off and shine in the limelight; Pennington’s, on the contrary, is a plain, unelaborated statement of the facts. He is driven to his confession, not by his desire to show off, but in self-defense. His colleague, March, is trying to throw the entire responsibility upon him in order to escape from any condemnation. In the face of this Pennington is prompted to tell his own story. He is not intelligent enough to make up a plausible story which would incriminate March and save himself. But in telling the facts as they occurred he incriminates himself quite as much as March, so far as the actual occurrences are concerned. His whole conduct, from the beginning of the crime until his arrest, is that of a dull, stupid person. He does not even wield the blackjack with intelligence, and after the man is killed by his comrade, he takes no precaution to save himself from suspicion, to dispose of the body or to clean up about the barn and remove the evidences of a crime. And finally, when it comes to a statement of the case, he apparently makes no attempt to shield himself, but acknowledges his part in it, although that part was, as a matter of fact, so slight that a little variation in his testimony would have thrown the entire burden upon March and relieved him from any complicity in the matter.
If the foregoing statement of the case is correct, we ask at once, how it happened that the jury did not see it in this light, but instead brought in a verdict of “Guilty in the first degree”? While there are many elements in the answer, such as the demand of the public for revenge on the murderer of the man who was more or less of a favorite; a hastily drawn jury; a hurried trial, etc., the burden of the explanation falls back upon the same condition which we discovered in the case of Gianini, namely, the ignorance of the general public in regard to this type of feeble-mindedness. Almost every one thinks that he knows an imbecile. We have so long considered these high-grade cases as normal but vicious persons, that it is difficult to change the point of view suddenly and realize that they are not responsible for their deeds.
This failure to recognize the high-grade type of imbecile extended even to the “experts” in the case; for whereas there were three who testified to the feeble-mindedness of the prisoner, there were four or five who testified to his normality. These were four general practitioners of medicine, including the jail physician, and the fifth, a professor of neurology and neuropathology. These gentlemen are all familiar with what we should call the low-grade type of imbecile. They were perfectly correct in declaring that Roland Pennington is not a low-grade imbecile. Not one of them had had experience with the high-grade type. They were, therefore, not qualified to pass upon a case of this kind. It was as though four general practitioners had been brought in to decide a case of obscure insanity. Every one of them could have testified that he had had more or less to do with insane people, meaning persons who are maniacal or strongly melancholic or katatonic, but what would be the value of the testimony of such men in such a case, for instance, as that of Thaw?
These men all thought they knew something about high-grade feeble-mindedness. They all testified that Pennington was a normal man. Compare this with the statement of Dr. Martin W. Barr, one of the foremost authorities on feeble-mindedness in the United States—indeed, in the world. Dr. Barr says (Alienist and Neurologist, November, 1914, page 367):—
“The courts simply do not go far enough back; they fail in that they do not reach the inception—the root of the matter. They often punish without careful investigation of the causes from which criminal instinct springs—the environment, family history, inherited tendencies, physical disability, and that susceptibility to suggestion which makes them the ready tools of the vicious.
“In the case of Roland Pennington, tried in Media last June, for aiding in the murder of a man, it was proven that the boy, although almost twenty in actual age, yet coming from a neurotic stock, with three first cousins imbecile, had mentally only attained some 11 or 12 years; still he was adjudged responsible, and murder in the first degree was the verdict.
“Is it not a poor law that first permits a person to commit a crime, and then punishes him for it, not recognizing that an ounce of prevention is worth a pound of cure?
“Pennington had sufficient intelligence to comprehend the enormity of the deed, but, susceptible to suggestion in exaggerated degree, he had not sufficient inhibition to resist the volitional act.
“Early recognition of his mental defect and separation would have protected him alike from tempter and temptation.”
It is unfortunate that Dr. Barr did not testify in the case, but his assistant did testify and was understood to express Dr. Barr’s views.
It was unfortunate, indeed, that men who really knew so little about the type of case before them were allowed to pass as experts and their opinion allowed to carry more weight with the jury than the opinion of those who have spent years in intimate association and study of the problem of high-grade imbecility. It should be recognized that there are very few persons who are expert with this type. The superintendents of our institutions for the feeble-minded, after a few years of experience, have a knowledge of this matter which far surpasses that of any physician who has not had institution experience, however great a specialist he may be in nerve diseases, in insanity or epilepsy. It is not enough to find out that a physician has had some experience with imbeciles. The real problem is: Has he had experience with this high-grade type? Is he able to pick them out? Is his knowledge as well as his experience confined to the medium and low grades, which every one meets? Failure to make this distinction had much to do with the verdict in the case of Pennington.
Another element in the result was the failure to make clear to the jury the precise situation, the real point at issue. The defense in the case had no desire to free Roland Pennington from all the consequences of his deed. It was not a case of the electric chair or freedom. The imbecile, especially one who has shown the tendency toward crime or willingness to be led into crime, should never be at large where it is possible for him again to go wrong. On the other hand, it is abhorrent to think of a child (in mind) going to the electric chair for the deed which he committed while under the influence of a superior intelligence, or while impelled by the hidden forces of his nature over which he had no control on account of his weak mind. It should have been made very clear to the jury that what was wanted was to save the commonwealth the shame of officially putting to death a person who had only a child’s intelligence. In an ideal state such a person should doubtless be kept in an institution for the feeble-minded under a life commitment, unless his impulses are such that he proves to be dangerous to the other inmates, in which case a different kind of institution should be provided. Until we arrive at a condition where we treat such persons ideally, one cannot object to the state prison for life for the imbecile manslayer. This, unfortunately, was not made very clear to the jury, and it seems probable that many of them thought that their verdict was either to condemn him to the electric chair or to set him free. Having only these alternatives, one can perhaps understand their decision.[2]
Another somewhat nice legal point was involved and brings up a matter which calls for some discussion. As already stated, March had been convicted largely upon the testimony of his accomplice, Roland Pennington. If now the jury should acquit Roland Pennington on the ground of imbecility, what would be the effect of such a decision upon Pennington’s testimony against March. Every one felt that March was guilty and consciously guilty and should be punished to the extent of the law. To bring in a verdict in the case of Pennington which would result in annulling his testimony and thereby taking away the one sure means of convicting March, was a serious matter. One may well believe that the jury felt that it was safest to convict Pennington of murder in the first degree and thus avoid raising this confusing question.
As a matter of fact, although the question would undoubtedly have been raised and attempts made to free March on the basis of Pennington’s feeble-minded testimony, yet such a procedure would not have been warranted.
Pennington, as we have claimed, is an imbecile with a mentality of about eleven years. We have a right to judge him largely on the basis of an eleven-year-old child. The testimony of eleven-year-old children is often admitted into court, and many a person has been convicted on such testimony. It is true that it is a somewhat moot question as to how much credence should be placed in children’s testimony. The real criterion in such cases is the nature of the child, a matter which we have already considered. A child may testify to simple facts, and may be relied upon where he has no particular interest, where there cannot be shown any tendency or desire on the part of the child to show off or to say something for effect or to exercise childish imagination and invent a large story for the sake of the pleasing sound.
It is perfectly clear to any one who studies the confession of Pennington that he must have told a straight-forward story. As already stated, he would not have incriminated himself as he did if he had been falsifying. He is not the type of person that runs on in an imaginary tale without regard to the facts. In short, his testimony bears every evidence of being entirely credible.
On the other hand, as already pointed out, Gianini’s testimony is unreliable, because he was talking for effect. He is of the type that loves show and notoriety. His testimony was only to be trusted where it could be corroborated by facts or the testimony of others.
Careful study of the testimony and the nature and the character of the child will almost always enable one to decide very accurately as to how much credence is to be placed in the evidence. In other words, the fact of high-grade imbecility does not of itself make the child’s testimony acceptable or non-acceptable. It must be judged on its merits. We have in these two cases excellent examples of the trustworthy and untrustworthy.
The testimony of Pennington at the March trial was a most marvelous performance. To those unfamiliar with high-grade imbecility, it was almost unexplainable. Many thought that he must have been very carefully and elaborately coached; that he had been told just what to say, and had learned his lesson well. Those, however, who know the imbecile understood perfectly what was happening. This eleven-year-old boy was telling a plain, unelaborated tale. He was not intelligent enough to try to escape himself, and so he had nothing to hide and, consequently, got into no confusion. He answered, “Yes,” “No,” or, “I don’t know” with a wisdom and a consistency that was simply amazing, and, as said, could only be explained on the understanding that he was telling the truth. No amount of cross-examination confused him, no sudden coups of the lawyer for the defense could entrap him. For example, when asked with considerable heat on the part of the attorney why he had forgotten a certain point while he remembered very vividly a certain other point, the witness made no attempt to explain; simply remarked that he did not know. In truth, he did not know. Any such psychological matter was as far beyond him as the heavens. Without imagination, without ability to reason out the effect of his answer on his own future, he could simply answer in the plainest kind of “Yes” or “No” as he knew the facts.
With these considerations, we pass on to consider the larger and more difficult problem, “Can an imbecile of the mentality of eleven years know the nature and quality of his acts and understand that it is wrong?”
