¶1(concurring in part and dissenting in part)— I concur with the majority in its disposition of all the assignments of error except those which relate to the submission to the jury of the defendant’s defense of mental irresponsibility. To these I dissent.
¶2The majority have approved an instruction embodying the so-called “right and wrong” test. For the purposes of accuracy, I would point out that the instruction given by the trial court, contrary to the majority’s assumption, is not the exact test of legal insanity as formulated by The Opinion of the Judges in M’Naghten’s Case, 10 Clark & F. 200, 8 Eng. R.ep. 718 (H. L. 1843). The trial court instructed the jury that the defendant should be acquitted if
“. . . at the time the crime is alleged to have been committed, his mind was diseased to such an extent that he was unable to perceive the moral qualities of the act with which he is charged, and was unable to tell right from wrong with reference to the particular act charged. . . . ” (Italics mine.)
¶3The M’Naghten rule states:
“ . . . it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. ...” (Italics mine.)
¶4*597I do not understand the italicized portions of the above two excerpts to have synonymous meaning. Moreover, the trial court’s language regarding perception of “moral qualities” appears to be substantially synonymous with its further language regarding the ability to tell “right from wrong.” Hence, the trial court’s instruction was not a complete statement of the M’Naghten rule. I will elaborate on the significance of this observation as I develop my points of departure from the majority’s views.
¶5I fully agree with the majority that this court is unquali-fiedly presented with the question whether the defense of mental irresponsibility should be available to persons who are, by reason of mental illness, unable to rationally control their behavior, but who at the time of the act have the capacity to understand the difference between right and wrong in terms of society’s standards. I also agree with the majority that the proper approach to this question must begin with the pertinent statutes. RCW 10.76.010, RCW 10.76.030 and RCW 10.76.040 have codified the common law rule which recognized mental irresponsibility as a defense to a criminal charge. These enactments go no further than recognizing that the defense of mental irresponsibility is available, and setting up certain procedures to implement it. Wisely, the matter of defining the term “mental irresponsibility” was left untouched; it is properly a judicial matter to be solved through the process of criminal trials with the aid of expert testimony.
¶6It is true that in 1909 the legislature attempted to eliminate mental irresponsibility as a defense to a criminal charge and that this court, in State v. Strasburg, 60 Wash. 106, 110 Pac. 1020 (1910), held the enactment to be unconstitutional. This court reasoned that the element of mens rea or “guilty mind,” constitutionally cannot be ignored and that mental irresponsibility, which negates the existence of mens rea, cannot, therefore, be abolished as a defense. We have never before stated nor intimated that the “right and wrong” test is a constitutional minimum, and I see no reason to conclude that our legislature has evidenced a desire that this state retain the “right and wrong” test. The *598statutes concerning the defense of mental irresponsibility, under which we now operate, were passed in 1907. The legislature did not then inform this court, nor has it since informed this court, as to how we should define or view the concept of mens rea in implementing the defense of mental irresponsibility. The Strasburgcase, supra, confirmed that mens rea cannot be eliminated as an element of crime. The delineation of that concept is a judicial function.
¶7In State v. Collins, 50 Wn. (2d) 740, 314 P. (2d) 660 (1957), we expressed an attitude which ought to govern the manner in which we dispose of this issue:
“. . . The law inquires not into the peculiar constitution of mind of the accused, or the mental weaknesses or disorders or defects with which he may be afflicted, but solely into the question of his capacity, at the time he committed a forbidden act, to have a criminal intent.
“On the question of the existence of a better method to determine that intent than the right-and-wrong test, we have an open mind. ...”
¶8I am convinced that both the M’Naghten rule, as laid down in 1843, and the “right and wrong” test given in the trial court’s instruction are inadequate and erroneous formulae for acquainting the jury with the meaning of criminal intent (mens rea). I am also convinced that a better formula is available.
¶9The majority have explained that the social policy underlying the notion of criminal responsibility is to maintain a threat of sanctions to deter those persons who have the capacity to be influenced by society’s standards of right and wrong. To this I subscribe. But I disagree with the majority’s conclusion that the minimization of crime in society is served if we retain the “right and wrong” test as a definition of mental irresponsibility. If, due to mental illness, a person cannot control his behavior (although he is aware or capable of knowing what society considers to be wrongful conduct), then certainly the criminal law cannot serve as an influence to his conduct and the “right and wrong” test does not achieve its asserted purpose.
¶10*599Mens rea or criminal intent not only requires that one have the capacity to understand society’s standards of right and wrong, but also requires that one have the capacity to apply his faculty of knowledge and understanding to his decision as to a course of action. If the latter capacity is absent due to mental illness, then such a person cannot be possessed of mens rea. To use the terms of the majority, volition, as well as cognition, is an element of criminal intent. In United States v. Currens, 290 F. (2d) 751 (1961), in a very comprehensive and enlightening opinion by Chief Judge Biggs, the court rejected the M’Naghten rule as a test for mental irresponsibility and based its conclusion, in part, on the ground that the M’Naghten rule does not recognize the volitional element as a prerequisite to criminal intent.
“The concept of mens rea, guilty mind, is based on the assumption that a person has a capacity to control his behavior and to choose between alternative courses of conduct. This assumption, though not unquestioned by theologians, philosophers and scientists, is necessary to the maintenance and administration of social controls. It is only through this assumption that society has found it possible to impose duties and create liabilities designed to safeguard persons and property. [Cases omitted.] Essentially these duties and liabilities are intended to operate upon the human capacity for choice and control of conduct so as to inhibit and deter socially harmful conduct. When a person possessing capacity for choice and control, nevertheless breaches a duty of this type he is subjected to the sanctions of the criminal law. He is subjected to these sanctions not because of the act alone, but because of his failure to exercise his capacity to control his behaviour in conformity with the demands of society. For example, an act of homicide will create no liability, only civil liability or varying criminal liability depending on the nature of the mental concomitant of the act. Generally, the greater the defendant’s capacity for control of his conduct and the more clearly it appears that he exercised his power of choice in acting, the more severe is the penalty imposed by society. Thus, the sanctions of the criminal law are meted out in accordance with the actor’s capacity to conform his conduct to society’s standards, through the capacity for choice and control which he possessed with respect to his act.
*600“It follows, we believe, that where there is a reasonable doubt as to whether a particular person possesses capacity of choice and control, i.e., capacity to conform his conduct to society’s standards there is a reasonable doubt as to whether he possessed the necessary guilty mind. A test for criminal responsibility should incorporate this analysis insofar as it is helpful as a means by which the jury can relate a defendant’s mental disease to the concept of the guilty mind. It should be made clear to the jury that the fact that a defendant was mentally diseased is not determinative of criminal responsibility in and of itself but is significant only insofar as it indicates the extent to which the particular defendant lacked normal powers of control and choice at the time he committed the criminal conduct with which he is charged. In other words the test must provide the jury with a verbal tool by which it can relate the defendant’s mental disease to his total personality and by means of which it can render an ultimate social and moral judgment.”
¶11Some students in this area have argued that the original M’Naghten test does not ignore the volitional element of mens rea, but embraces that element in the phrase “as not to know the nature and quality of the act he was doing.” See Mueller, M’Naghten Remains Irreplaceable: Recent Events In The Law Of Incapacity, 50 Geo. L. J. 105 (1961). This view appears very unpersuasive, mainly because the quoted phrase from the M’Naghten rule is put in terms of knowledge rather than control or choice. However, even if it be true that the M’Naghten judges were making an attempt to express the volitional element of mens rea in their test of mental irresponsibility, that fact cannot validate an extremely outdated formula. Furthermore, it is certain that the instruction given by the trial court in the instant case did ignore the volitional element of mens rea.
¶12In essence then, the “right and wrong” test is inadequate as a “verbal tool” because it is based upon a false concept of the human psyche. It cannot stand as a test for determining the guilt of one who defends on the ground of mental irresponsibility because it fails to recognize what the modem science of psychology has unquestionably revealed, ie., that the human personality is a complex integrated system where cognitive, volitional and emotional elements are in*601extricably intertwined. The mind is not divided into separate compartments containing independent faculties of knowledge, reason and choice. Because the test of M’Nagh-ten is couched solely in terms of knowledge and morality, the expert psychiatrist who is called to testify at the criminal trial is not free to present his views from a clinical approach which should be his proper role as an expert. Instead, he is called upon to answer questions of morality, matters which are foreign to his science and which should properly be left to the jury. See the array of authorities cited in United States v. Currens, supra.
¶13The problem of devising an alternative to the M’Naghten rule is by no means simple. The indefinite concept of mens rea, the many questions yet unsettled by medical psychology, and the difficulty of relating an understandable and properly limited test to a jury make the quest for a solution complex. See Lindman and McIntyre, The Mentally Disabled and The Law, Ch. 11 (1961). However, uncertainty, which inevitably is a part of following new paths, should not cause this court to hold on to a test which is ineffective as an aid to the jury and not conducive to the ends of the criminal law.
¶14The test of mental irresponsibility set forth in United States v. Currens, supra, meets the major objections to the M’Naghten rule, provides the necessary freedom for the expert psychiatric witness, and adequately relates the defense of mental irresponsibility to the main issues in the criminal trial. The jury ought to be instructed as follows: In order to acquit the defendant on the ground of mental irresponsibility you must be satisfied that at the time of committing the prohibited act the defendant, as a result of mental disease or defect, lacked substantial capacity to conform his conduct to the requirements of the law which he is alleged to have violated.
¶15I also feel constrained to comment on the defendant’s assignment of error No. 7, in which he contends the trial court erred in refusing to instruct the jury as follows:
“If you find that the defendant is not guilty by reason of mental irresponsibility, it is not for you to determine *602what is to be done with him. That responsibility rests with the Department of Institutions not with the jury.”
¶16I agree with the majority that this proposed instruction incorrectly stated the law and, therefore, the trial court did not err in failing to submit it to the jury. However, due to the posture of this case and the reasons underlying this assignment of error, this matter should be brought into focus. I am of the opinion that, upon proper request, a defendant who pleads mental irresponsibility is entitled to have the jury informed, by way of instruction, as to the procedures in the state of Washington for the handling of those who are acquitted, but found by the jury unsafe to be at large in society. As the record in this case indicates, juries are acutely sensitive to the prospect of having dangerous persons at large and are tempted to “take the law into their own hands” in order to carry out what they may consider is their responsibility to protect society. In order to make the defense of mental irresponsibility a meaningful one, it is necessary to that end that juries be made aware of the social controls and machinery which the law provides for society’s protection from a mentally irresponsible person who is unsafe to be at large.
¶17Specifically, the defendant who pleads mental irresponsibility as a defense should be entitled to have the jury informed of the following: (1) Upon jury findings that he is not guilty by reason of mental irresponsibility and that such mental condition still exists or that because of the likelihood of relapse or recurrence he is unsafe to be at large, the court will order the defendant committed as a criminally insane person. (2) A person so committed shall not be discharged save upon the order of a court of competent jurisdiction made after a trial and judgment of discharge. (3) An order of discharge may be entered only after a trial before a jury in the court of the county that committed him, wherein it is found that he is a safe person to be at large. RCW 10.76.040, RCW 10.76.060, RCW 10-.76.070.
¶18I would reverse the judgment of conviction and remand *603the case for a new trial under appropriate instructions to the jury consistent with the views expressed herein.
¶19Finley, C. J., and Foster, J., concur with Hunter, J.
¶20March 13, 1963. Petition for rehearing denied.