MEMORANDUM DECISION
In the contemporary setting of psychiatry, psychosis, psychology, sociology, sensualism, psychedelics and sniffing of glue, again there is under attack in this case the continued constitutional viability of the venerable M’Naghten.1 And another old common law concept — that voluntary intoxication is no excuse for the commission of crime but may be considered only in relation to such questions as intent or motive — is within the target area.
On October 13,1964, the petitioner Ray Wayne Pierce, after conviction upon verdict of a jury, was sentenced in the Third Judicial District Court of the State of Utah to be confined in the Utah State Prison for the indeterminate term provided by law for the crime of murder in the second degree. This conviction was appealed to the Utah Supreme Court and the judgment was affirmed.2 The state court determined the appeal by an opinion which is set out in full in the margin.3
Pierce filed a petition for a writ of habeas corpus in the Utah Supreme Court which on the same day was denied, it being considered by that court as a petition for rehearing in the appeal.4 A petition for a writ of certiorari was then filed in the Supreme Court of the United States. On the 1st day of March, 1967, the Supreme Court entered its order denying the petition.5 Mr. Justice Douglas in a *292written memorandum concurring in the denial, commented:
“Denial of certiorari is proper in this ease. I see no constitutional bar to a state court treating a petition for habeas corpus as a petition for rehearing where the habeas corpus petition raises the same questions as an earlier appeal. But federal habeas corpus is not so cramped, and the petitioner can, of course, petition a federal district court for a writ of habeas corpus. The underlying question is whether the M’Naghten test of legal insanity is a constitutionally permissible test of criminal liability in light of the contemporary state of knowledge on the problems of insanity. Should that test give way to the 128 years of experience in the fields of psychiatry and psychology since its formulation ? Should it be replaced by the more sophisticated and realistic Durham test (Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430) or some other test more in keeping with due process ?”
Thereupon Pierce filed his petition for a writ of habeas corpus in this court, asserting that his constitutional rights were infringed in the state court proceeding by reason of the alleged denial to him of an effective jury trial and of due process and the equal protection of the laws, particularly because the jury was given no express instruction concerning the effect on criminal responsibility of delusions or hallucinations. It is not questioned that petitioner has exhausted his state remedies.
The cursory treatment in the State Supreme Court opinion of the problems here involved failed to afford the assurances contemplated by 28 U.S.C.A. § 2254 as amended by Pub.L. 89-711, 80 Stat. 1104,6 for dispensing with a hearing in a United States Court. Moreover, it seemed inappropriate summarily to reject as insubstantial the question raised in the memorandum accompanying the denial of certiorari by the Supreme Court of the United States.
Accordingly, an evidentiary hearing has been held, briefs have been filed and the case has been submitted for decision on the issues (I) whether the modern M’Naghten test of legal insanity was a constitutionally permissible one under the circumstances of this case and (II) whether the court’s instruction concerning the legal effect of “voluntary intoxication” deprived plaintiff of due process by reason of any neutralizing effect it may have had on the insanity instruction or upon the petitioner’s claim that he was not responsible for his acts because he was suffering from delusions or hallucinations as a result of “glue sniffing” and that anything in the instructions to the contrary constituted a deprivation of due process.
I
There is no necessity to recount in detail the circumstances of the killing revealed by the evidence before the state trial court. The opinion of the State Supreme Court quoted in the margin indicates broadly the nature of some of the evidence. It seems sufficient to add for the purpose of this opinion that there was competent evidence from which the jury could have believed that Pierce as a result of glue sniffing had been highly intoxicated, had suffered from hallucinations or delusions, had not intended to kill the victim and had not known what he was doing or that it was wrong. On the other hand, there was competent evidence from which it could have been believed that the effect of his glue sniffing was not such as to prevent him from knowing what he was doing or to know *293that it was wrong; and the jury could have believed that the killing was intentionally accomplished with mercenary motive and that his claimed amnesia was a defensive afterthought. It is clear from the record that the petitioner had inhaled glue shortly prior to the killing, that he did, in fact, kill the deceased, and that the circumstances of the killing were bizarre and unusual.
No claim is made that the state court’s instructions did not conform to the M’Naghten Rule, including its irresistible impulse extension, as applied generally in the Utah courts.7 The able counsel for petitioner attacks the rule itself in this case upon the contentions that (a) there is widespread medical knowledge and general acceptance of the toxic psychosis resulting from the use of organic solvents such as toluene involved in glue sniffing; (b) that this knowledge was not acquired pri- or to 1960; (c) that the classical M’Naghten Rule has medical application only with respect to demented persons, possessing no reasonable diagnostic value when applied to toluene induced psychosis; and that the irresistible impulse test has no sound medical basis as a symptom of insanity; (d) that the psychological results from voluntary intoxication from alcohol and voluntary intoxication from toluene are markedly different, the former never producing psychosis short of withdrawal, and the latter producing a psychotic derangement not contemplated by its use; and (e) that only some legal test of insanity which would acquit one from responsibility for criminal conduct if at the time of such conduct, as a result of mental disease or defect, such person lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law, would receive wide acceptance from the scientific community as a medically fair and reasonable test of insanity, including toxic psychosis.
A number of courts, indeed, of recent years have rejected M’Naghten as a proper test of criminal responsibility.8 Yet *294all of these decisions were by courts exercising supervisory powers over common law developments to be applied in inferior courts and none of them has been based upon a determination that utilization of the M’Naghten Rule constituted a deprivation of due process.
The last authoritative decision on the latter question appears to be that of the Supreme Court of the United States in 1952 9 in which it was concluded that the M’Naghten Rule even without supplementation by the irresistible impulse doctrine did not violate due process. Mr. Justice Clark wrote for the court:
“ * * * Knowledge of right and wrong is the exclusive test of criminal responsibility in a majority of American jurisdictions. The science of psychiatry has made tremendous strides since that test was laid down in M’Naghten’s Case, but the progress of science has not reached a point where its learning would compel us to require the states to eliminate the right and wrong test from their criminal law. Moreover, choice of a test of legal sanity involves not only scientific knowledge but questions of basic policy as to the extent to which that knowledge should determine criminal responsibility. This whole problem has evoked wide disagreement among those who have studied it. In these circumstances it is clear that adoption of the irresistible impulse test is not ‘implicit in the concept of ordered liberty.’ ”
The leading case from the Tenth Circuit 10 also cited by the petitioner as a departure from M’Naghten, really seems more a restatement of that rule in modern context.11 The Tenth Circuit in effect declined to follow the Durham and Currens statements and implied, it seems to me, that the modern M’Naghten Rule as encompassed in the trial court’s instructions in both Coffman and Wion comports essentially with the ALI form*295ula.12 While a more simple and meaningful restatement of M’Naghten was formulated in Wion which is now generally utilized by trial courts in this Circuit, the lower court’s instructions, couched in the traditional words were not disapproved, the defendant’s conviction being affirmed. Even the new formulation of the M’Naghten Rule in Wion, following the ALI approach that “a person is not criminally responsible for his conduct if, at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law,” 13 does not seem to me to be substantially different than the charge given by the state trial court in the present case. There are varying nuances and emphases bút the significance of such distinctions as those between “knowing”, “appreciating”, and “understanding”, or between “inability to conform conduct” and “inability to control his actions”, or between “illness”, “disease”, “condition”, or “defect” are not such as likely to control the average juror in his ultimate decision.14 They may control judges in the admission of evidence but as will be seen hereafter, we have no such problem here.
But irrespective of the view that may be taken of Wion otherwise, it seems clear that this decision in principle points up the lack of any due process problem in the state trial court’s instruction before me.
Petitioner relies heavily upon United States v. Freeman, 357 F.2d 606 (2d Cir. 1966), as demonstrating the inadequacies of the M’Naghten Rule. Judge Kaufman’s brilliant historical review and scientific analysis present many arguments for the adoption by federal courts of a different statement in the development of the common law on the subject. The reason that the Second Circuit, in spite of the attack upon the scientific bases of M’Naghten, arrives at about the same point as that reached more directly by Chief Judge Murrah for the court in Wion rather than at a conclusion more in keeping with the psychiatric view which seems nearer Durham may be the inescapable consideration mentioned in Leland, supra: The choice of a test of legal sanity involves not only scientific knowledge but questions of basic policy concerning the extent to which that knowledge should govern criminal responsibility. Many of the attacks upon M’Naghten have been based upon the erroneous assumption that that rule was intended, and has been adopted and extended, as a definition of insanity rather than a statement definitive of criminal responsibility.15
In any event, as properly pointed out by Judge Kaufman in Freeman, “Our [the circuit court’s] duty to supervise the administration of criminal justice in the courts of this Circuit can hardly be subject to the same restrictions as our power to impose constitutional requirements upon unwilling state tribunals.”
Within constitutional limitations, it is for the state itself to determine standards for criminal accountability free *296from the views of federal judges who might be led by reason of their own supervisory powers within the federal system to espouse different standards there. A state may give support by its laws to its own public policies and necessities, and it may emphasize or subordinate medical knowledge, humanitarianism and sympathy, or the demands of public order as it chooses, so long as its laws or their applications do not offend fundamental principles of fairness and reason.
Nor need states look to psychiatrists rather than to legislators to write their laws, any more than state judges must seek controlling guides to their interpretation more in the medical journals than in the statutes and case books. The Constitution of the United States may not be interpreted to render the protection of society irrelevant to the definition of criminal responsibility. My conviction is that the gist of the M’Naghten test as encompassed in Wion represents an appropriate blend and reconciliation of humanitarianism, reason, social control, protection of society and natural justice, and that it has reasonably adapted itself, and continues relevant, to the expanding medical knowledge of the mind. Should I be wrong in this view, I am yet convinced that the difference between it and the most critical view of M’Naghten would not carry the case beyond the bounds of due process or render it one of cruel or unusual punishment proscribed by the Constitution.
II
There remains a consideration of the propriety and effect of the state trial court’s instruction on “voluntary intoxication”, considered in context with the insanity charge. Again I accept as a proper test, in the words of petitioner’s counsel, whether in the light of the contemporary state of knowledge on the problem of insanity and the effects of glue sniffing the court’s instructions as a whole involved a denial of fundamental fairness or liberty shocking to the universal sense of justice.
Unlike the situation in Freeman, supra, where the federal trial judge rigidly restricted the evidence of the psychiatrists to that directly relevant to the right and wrong test, the evidence received by the trial court in the case at bar was of broad range, and thoroughly explored the contemporary state of knowledge concerning toluene and its effects. Emphasis has been placed by petitioner’s counsel upon the possible effects of glue sniffing as indicated by recent observations and studies. As indicating the contemporary state of knowledge in this field a recent study concerning Solvent Sniffing,16 which was co-authored by one of the witnesses in the state court trial, was introduced in evidence here. While this article was published after the trial, I perceive no significant aspects of the psychologic and toxicologic effects of glue sniffing that were not fairly developed before the state court jury,17 Dr. Done *297having then mentioned that this article was then under preparation.
The jury fairly had the benefit of the substance of the relevant current knowledge and its possible application to the circumstances of the killing. That the experts could not completely agree upon applications of current knowledge to the case at hand or that the jury did not adopt the views of some of the experts or all of the assumptions of fact on the basis of which they testified, is no reason to question the broad rule of criminal responsibility within the framework of which inquiry was made. As the Utah court noted in another case involving claimed intoxication and drug use, the jury did not have to blindly accept defendant’s contentions, especially where other evidence of circumstances attending the crime réndered such contentions improbable.18
While the comments of Mr. Justice Douglas, supra, invited, and the petition and petitioner’s brief in the case at bar make, a massive attack upon the modern M’Naghten Rule itself, perhaps the most questionable phase of the state court’s proceedings involved the court’s instruction concerning voluntary intoxication.19
*298This narrower question is not argued at length in the briefs, but the position of petitioner as I understand it is that the “voluntary intoxication” instruction at least tended to neutralize the “insanity” instruction even though the latter is interpreted as rendering relevant the testimony concerning the effects of glue sniffing. In other words, is it possible that under the court’s instructions the jury may have found that the defendant was insane by M’Naghten standards as a result of glue sniffing and yet criminally responsible since his condition was the result of “voluntary intoxication”?
It seems probable that both the state court and jury accepted the defendant’s claimed condition from glue sniffing to be one resulting from “voluntary intoxication.”20 There was no evidence of the inbibing or inhalation of any intoxicating agent other than toluene. Dr. Done’s article referred to “intoxication” from “solvent sniffing” in the “voluntary” context.21 Intoxication from glue sniffing may differ in effect from other types of intoxication, but it is nonetheless intoxication which, if voluntary, clearly falls within the purpose, reach and application of the general principle involved in the instructions.
The voluntary intoxication instruction does not appear to have preempted the area covered by the insanity instruction nor to have neutralized the latter. The instructions were to be read as a whole, and the very fact that the insanity instruction was given was an indication to the jury that it covered rules of law not encompassed by the voluntary intoxication instruction. The arguments of counsel to the jury, while understandingly emphasizing different phases of the instructions, did not preclude the jury’s consideration of both instructions.22 *299Moreover, the instruction on voluntary intoxication as well as other instructions of the court,23 emphasized under any view the essential element of specific in*300tent which in the context of the evidence could not have been deemed present had the jury accepted the defendant’s version of how the killing took place. It is apparent that the jury did not do so, nor in view of the conflicting evidence and permissible inferences did it have to. On the record I believe that the defendant probably received greater consideration than the Constitution or the statutes of Utah entitled him to — the benefit of the M’Naghten Rule in spite of the fact that his “insanity”, if any, was admittedly temporary at most and was caused entirely from his voluntary intoxication.24
*299“1. That on or about the 28th day of May, 1964, at Salt Lake County, State of Utah, the defendant Ray Wayne Pierce killed Kenneth Jack Vaught;
*300“2. That the killing was with malice aforethought;
“3. That when the defendant struck with the fatal knife he had a specific design or intention, thought out beforehand, to cause great bodily injury to the deceased, or an intention or design thought out beforehand to do an act, knowing the reasonable and natural consequences thereof would be likely to cause great bodily injury to the deceased;
“4. That the killing was unlawful;
“5. That the said Kenneth Jack Vaught died within a year and a day after the cause of death was administered.
“The burden is upon the state to prove to your satisfaction and beyond a reasonable doubt that all of the foregoing elements of the crime of murder in the second degree are present in this case, and if the State shall have failed to so satisfy your minds upon one or more of the aforesaid elements, you cannot find the defendant guilty of murder in the second degree. * * *"
Even if the instructions taken as a whole were susceptible of the construction that voluntary intoxication through glue sniffing would not constitute a defense under the theory of “insanity” if the jury found beyond a reasonable doubt that the defendant had both malice and the specific intent to kill the deceased. I do not believe any constitutional right of the defendant would have been violated. The principle in the voluntary intoxication charge is found not only in the Utah statute 25 but is a common law principle which when properly applied seems essential to the proper protection of society.26 Intoxication is not limited to that brought about by intoxicating liquor but may include intoxication by drugs.27 There is no claim in this case, nor does the expert testimony suggest, that petitioner’s intoxication, or the mental condition resulting therefrom, was anything but transitory. The rule has been uniform that insanity brought about by transitory voluntary intoxication is no defense to homicide.28 The application of the statutory test in this connection should not be made to depend upon theoretical or practical similarity between the effects of mental illness and intoxication, but rests upon the right of the state to define criminal responsibility in keeping with elementary principles of fairness, justice and order. As applied to such a case as this, these principles would not have been violated by the conviction of a defendant who possessed, and carried out with malice aforethought, the specific intent to kill another human being; but elementary principles of justice, fairness and good order would in my opinion be offended by the acceptance as constitutionally required of the proposition that such conduct, or similar conduct by persons who have voluntarily placed themselves under the temporary influence of drugs is beyond the reach of penal sanctions.
*301The more difficult problems of what is “involuntary”,29 particularly in the context of addiction, the extent of constitutionally permissible punishment for various acts committed while a person is intoxicated, organic or permanent brain damage or illness resulting from intoxication, as distinguished from the transitory effects of voluntary intoxication,30 punishment of a status, as such, apart from the commission with specific intent of an affirmative criminal act31 or the question of mere error subject only to direct appeal as distinguished from constitutional infirmity, are not involved or reached in this case.
For the foregoing reasons the petition for writ of habeas corpus herein is denied and the petition is dismissed.