Since we cannot unconditionally deny the possibility of a crime being brought about by hypnotic or post-hypnotic suggestion, it behoves us to consider what the legal position would be in such cases; and we must at the same time distinguish between an action carried out in hypnosis and one that is the result of post-hypnotic suggestion.

It is certainly less likely that such an act will be performed in hypnosis than post-hypnotically. But the former possibility is by no means entirely excluded. We have only to think of spiritualist mediums who in a state of trance, which is to be considered an auto-hypnosis, deceive their fellow-men, no matter whether they do so at the special suggestion of their accomplices or spontaneously. (I will, moreover, take this opportunity of adding that I am convinced that many cases of supposed trance are only simulations of that state.) Nevertheless, we have to discuss the question of a criminal action being carried out by a person who is in the hypnotic state. Par. 51 of the Criminal Code would apply here: -

An action shall not be punishable when the agent at the time he committed it was in a state of loss of consciousness, or of such a morbid disturbance of his mental faculties as to render him incapable of free volition.

According to Schwartzer, Casper, and Liman, loss of consciousness includes abnormalities of consciousness, but according to Krafft-Ebing it means abnormality of the self-consciousness. It was the intention of our law-givers to include in the idea of loss of consciousness certain conditions that cannot be straightway considered morbid disturbances of the mental activity - such as states of drunkenness, certain emotional states, somnambulic conditions, etc. (Casper, Liman, Krafft-Ebing). There would therefore not be the slightest difficulty in including hypnosis here. But the position would be different if the incriminating action were performed through the agency of hypnotic suggestion. We have already seen (p. 165 et seq.) that the mental states in which post-hypnotic suggestions are realized differ. Now the state is normal, now an abnormal one. Whether we consider the latter an ordinary hypnosis, or a special condition, as Liegeois, Beaunis, and Gurney do, is immaterial from the forensic point of view, since § 51 might apply at any time.

Whether § 52, which declares that an action is not punishable when the agent is driven thereto by some irresistible force, would include those cases in which a suggestion is carried out in the waking state must be left to jurists to decide, and their views as to whether irresistible force only applies to physical influence differ considerably. Olshausen has expressed himself in favour of the "physical force" view, whereas Neumeister would apply § 52 to cases of hypnotic suggestion. Krafft-Ebing had much earlier come to the conclusion that many cases of impulsive action should be considered as the effect of compulsion by irresistible force in the meaning of §52.

I have here, and also previously (p. 166), called those states waking states in which a hypnotic suggestion was carried out when the mental state was not perceptibly abnormal, except on the one point. But I only did this to avoid making the discussion too complicated. This question was at first passed over as unimportant, but Bentivegni has recently called special attention to it. I will therefore now consider whether there is a mental state which may be called normal in spite of irregularity on one point, as would be the case when suggestions are carried out in an apparently normal state.

We will take a simple case. I say to X. in hypnosis, "When you wake you will give A. a blow in the ribs." X. wakes and performs the suggested action; and he will accept no other suggestion either before, during, or after the act. Thus it appears that he is quite normal except on the one point. But modern psychiatry, and forensic psycho-pathology in particular, say that a man cannot be mentally abnormal on one point only; they rather suppose a mental disturbance showing itself on one point, which is a symptom of general mental disturbance (Krafft-Ebing, Morel, Maudsley, etc., etc.). Therefore the state, in carrying out a post-hypnotic suggestion, would really be abnormal, though it appeared normal, as Bentivegni insists. But this author further thinks that this certainly cannot be supposed in all cases of post-hypnotic suggestion, otherwise we should be obliged to think every man who accepted a therapeutic post-hypnotic suggestion was in an abnormal state when he carried it out. Take the following case, for instance: Y. is hypnotized in my very warm room, and I tell him to say in half an hour, "Your room is frightfully hot." Now supposing it is really hot in my room, the carrying out of this post-hypnotic suggestion would by no means suffice to prove that the subject had again fallen into an abnormal state.

The question we have now to consider is how we are to decide whether the subject is in a normal or an abnormal state. A diagnostic point is difficult to find, but it seems to me that Bentivegni's is the only one we have to guide us, although it at times depends on subjective distinctions. He says, "The state while carrying out a post-hypnotic suggestion can only be thought normal when the motive force developed by the suggestion is such as can also be explained by the normal disposition of the subject, and when it is not so opposed to reality that the normal individual would at once discover and correct it." According to the last clause, posthypnotic sense-delusions without a renewed state of suggestibility would at once prove an abnormal mental state, and particularly so in those cases of sense-delusion to which Bergmann ascribes a physiological and not a pathological character. An abnormal state of consciousness would also have to be assumed for the carrying out of numerous post-hypnotic acts, but not for all, even when there is no renewed state of suggestibility. Let us, for instance, consider the two cases mentioned above. One post-hypnotic suggestion was that X. should give A. a blow in the ribs.