Is Killing While Asleep a Voluntary Act?

The King v. Cogdon

Mrs. Cogdon was charged with the murder of her only child, a daughter called Pat, aged nineteen. Pat had for some time been receiving psychiatric treatment for a relatively minor neurotic condition of which, in her psychiatrist’s opinion, she was now cured. Despite this, Mrs. Cogdon continued to worry unduly about her. Describing the relationship between Pat and her mother, Mr. Cogdon testified: “I don’t think a mother could have thought any more of her daughter. I think she absolutely adored her.” On the conscious level, at least, there was no reason to doubt Mrs. Cogdon’s deep attachment to her daughter. To the charge of murdering Pat, Mrs. Cogdon pleaded not guilty. Her story, though somewhat bizarre, was not seriously challenged by the Crown, and led to her acquittal.


            Mrs. Cogdon told how, on the night before her daughter’s death, she had dreamt that their house was full of spiders and that these spiders were crawling all over Pat. In her sleep, Mrs. Cogdon left the bed she shared with her husband, went into Pat’s room, and awakened to find herself violently brushing at Pat’s face, presumably to remove the spiders. This woke Pat. Mrs. Cogdon told her she was just tucking her in. At the trial, she testified that she still believed, as she had been told, that the occupants of a nearby house bred spiders as a hobby, preparing nests for them behind the pictures on their walls. It was these spiders which in her dreams had invaded their home and attacked Pat. There had also been a previous dream in which ghosts had sat at the end of Mrs. Cogdon’s bed and she had said to them, “Well, you have come to take Pattie.” It does not seem fanciful to accept the psychological explanation of these spiders and ghosts as the projections of Mrs. Cogdon’s subconscious hostility towards her daughter; a hostility which was itself rooted in Mrs. Cogdon’s own early life and marital relationship.

            The morning after the spider dream she told her doctor of it. He gave her a sedative and, because of the dream and certain previous difficulties she had reported, discussed the possibility of psychiatric treatment. That evening Mrs. Cogdon suggested to her husband that he attend his lodge meeting, and asked Pat to come with her to the cinema. After he had gone Pat looked through the paper, not unusually found no tolerable programme, and said that as she was going out the next evening she thought she would rather go to bed early. Later, while Pat was having a bath preparatory to retiring, Mrs. Cogdon went into her room, put a hot water bottle in the bed, turned back the bedclothes, and placed a glass of hot milk beside the bed ready for Pat. She then went to bed herself. There was some desultory conversation between them about the war in Korea, and just before she put out her light Pat called out to her mother, “Mum, don’t be so silly worrying there about the war, it’s not on our front door step yet.”

            Mrs. Cogdon went to sleep. She dreamt that “the war was all around the house,” that soldiers were in Pat’s room, and that one soldier was on the bed attacking Pat. This was all of the dream she could later recapture. Her first “waking” memory was of running from Pat’s room, out of the house to the home of her sister who lived next door. When her sister opened the front door Mrs. Cogdon fell into her arms, crying “I think I’ve hurt Pattie.”

            In fact Mrs. Cogdon had, in her somnambulistic state, left her bed, fetched an axe from the woodheap, entered Pat’s room, and struck her two accurate forceful blows on the head with the blade of the axe, thus killing her.


Mrs. Cogdon’s story was supported by the evidence of her physician, a psychiatrist, and a psychologist. The jury believed Mrs. Cogdon. The jury concluded that Mrs. Cogdon’s account of her mental state at the time of the killing, and by the unanimous support given to it by the medical and psychological evidence completely rebutted the presumption that Mrs. Cogdon intended the natural consequences of her acts. It must be stressed that insanity was not pleaded as a defence because the experts agreed that Mrs. Cogdon was not psychotic. The jury acquitted her because the act of killing itself was not, in law, regarded as her act at all.


1. Was Mrs. Cogdon’s act of killing Pat involuntary?

2. Could she have done anything to prevent it?

3. It is widely held that it is wrong to punish those who cannot be blamed. Would it be “right” to punish Mrs. Cogdon? Why or why not?10

Note Cases

1. Emil Decina suffered an epileptic seizure while driving his car. During the seizure, he struck and killed four children. Was the killing an “involuntary act” because it occurred during the seizure? The court said no:

This defendant knew he was subject to epileptic attacks at any time. He also knew that a moving vehicle uncontrolled on a public highway is a highly dangerous instrumentality capable of unrestrained destruction. With this knowledge, and without anyone accompanying him, he deliberately took a chance by making a conscious choice of a course of action, in disregard of the consequences which he knew might follow from his conscious act, which in this case did ensue.

People v. Decina, 138 N.E.2d 799 (N.Y.1956)

2. Bobby George was convicted of aggravated assault. George put a gun to a friend’s head and demanded a dollar. After he cocked the hammer, it “slipped off [his] thumb” and the “gun went off.” George did not mean for the gun to go off. He did not intend to hurt his friend; it was an accident. In its opinion, the Texas Court of Criminal Appeals said:

“[T]here is no law and defense of accident in the present penal code,” but . . . the Legislature had not jettisoned the notion.”The function of the former defense of accident is performed now by the requirement of . . . § 6.01(a), that, A person commits an offense if he voluntarily engages in conduct . . .” If the issue is raised by the evidence, a jury may be charged that a defendant should be acquitted if there is a reasonable doubt as to whether he voluntarily engaged in the conduct of which he is accused.” . . .

            If the hammer “slipped off [his] thumb,” it had to be that the thumb holding the hammer partially back released just enough pressure for the hammer to “slip” forward. However slight, that is “bodily movement” within the meaning of § 1.07(a)(1), and there is no evidence that it was involuntary.

George v. State, 681 S.W.2d 43 (Tex.Crim.App.1984)

3. In a Danish case, Bjorn Nielson masterminded a robbery by hypnotizing his friend Palle Hardrup. While in the hypnotic trance, Hardrup held up a Copenhagen bank, shooting and killing a teller and director. Nielson was sentenced to life imprisonment because he masterminded the holdup, even though he was nowhere near the bank when the robbery took place. Hardrup was sent to a mental hospital. He was not tried for robbery because his acts during the holdup were not considered voluntary.[i]

4. Robert Brian Fulcher got into a fight in a bar, passed out, and was picked up by the police. He was taken to jail, where he brutally stomped on another jail inmate and shouted ethnic slurs at him. Fulcher testified that he remembers nothing after passing out in the bar. At the trial, Doctor LeBegue testified that Fulcher suffered from a concussion incurred during the bar fight, and that it caused a brain injury that put Fulcher “in a state of traumatic automatism at the time of his attack on Hernandez . . . the state of mind in which a person does not have conscious and willful control over his actions. . . .” Was Fulcher liable? No, said the court. Unconscious automatism is an affirmative defense because “[T]he rehabilitative value of imprisonment for the automatistic offender who has committed the offense unconsciously is nonexistent. The cause of the act was an uncontrollable physical disorder that may never recur and is not a moral deficiency.” Fulcher v. State, 633 P.2d 142 (Wyo.1981)

5. Bruce Jerrett terrorized Dallas and Edith Parsons—he robbed them, killed Dallas, and kidnapped Edith. At trial, Jerrett testified that he could remember nothing of what happened until he was arrested, and that he had suffered previous blackouts following exposure to Agent Orange during military service in Vietnam. The trial judge refused to instruct the jury on the defense of automatism. The North Carolina Supreme Court reversed, and ordered a new trial. State v. Jerrett, 309 N.C. 239, 307 S.E.2d 339 (1983)